The State of Washington, Respondent, v. William Andrew Kurtz, Petitioner, 178 Wash. 2d 466

Madsen, C.J. ¶1 —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),

chapter 69.51A RCW, does not abrogate the common law. We reverse and remand for further proceedings. FACTS ¶2 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 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. ¶3 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. Kurtz then petitioned this court for review, 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 ¶4 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Specifically, he argues that the necessity defense was not abolished by this State’s jurisprudence, nor was the defense superseded by the Act.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). ¶5 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 of the 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 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. Id. 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 sought to be prevented by the controlled substances law; and (3) no drug is as effective in minimizing the effects of the disease.” Id. 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). ¶6 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 use for marijuana when it classified marijuana as a

schedule I substance. Id. at 346-47 (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. Id. at 347. ¶7 One month before the Williams opinion was published, the people passed Initiative 692, which was later codified in

chapter 69.51A RCW as the Act. The Act declared that the medical use of marijuana by qualifying patients is an affirmative defense to possession of marijuana. Former RCW 69.51A.040 (1999). 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). 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. Williams, 93 Wn. App. at 347 n.1. ¶8 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 legislature made the initial classification of marijuana as a

schedule I substance. Seeley, 132 Wn.2d at 784. With that in mind, we determined that there was substantial evidence to support the legislature’s action. Id. 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. ¶9 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 drugs 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 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 of the common law medical necessity defense. Cf. State v. Hanson, 138 Wn. App. 322, 330-31, 157 P.3d 438 (2007) (determining that the Act provided only an affirmative defense to a drug crime and was not inconsistent with the scheduling statute). Indeed, the legislature defers to the state board of pharmacy 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 contention that by scheduling a drug the legislature has also decided the efficacy of that substance for purposes of a medical necessity defense. ¶10 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(l)(

a) states, “The legislature finds that . . . [t]here is medical evidence that some patients with terminal or debilitating medical conditions may, under their health professional’s care, benefit from the medical use of cannabis.” Accordingly, 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. ¶11 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 of the 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. Util. Dist. No. 1 of Douglas County, 83 Wn.2d 219, 222, 517 P.2d 585 (1973) (citing State v.

Wilson, 43 N.H. 415 (1862)). ¶12 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.010,” suggesting the legislature did not intend to supplant or abrogate the common law. RCW 69.51A.005(3). In explaining the purpose of the Act the 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 69.51A.005(l)(b).

To hold that this Act limits existing defenses for medical necessity would undermine the legislature’s humanitarian goals. ¶13 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 581 (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; Mobil Oil, 436 U.S. at 625-26. As Milwaukee notes, “Federal 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. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 82 L. Ed. 1188 (1938)).

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. Id. at 316. In contrast, common law is not a rarity among the states and is often developed through the courts, as was the case with medical necessity 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. ¶14 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 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 or “so inconsistent with and repugnant to the prior common law that both cannot simultaneously be in force.” Madden, 83 Wn.2d at 222. ¶15 The State points to other aspects of the Act that it views as “obvious inconsistencies.” Suppl. Br. of Resp’t at 11.

For example, the State hypothesizes that an individual who obtains authorization by an unqualified physician would not satisfy the Act but would 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. ¶16 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 relies on Washington Water Power Co. v.

Graybar Electric Co., 112 Wn.2d 847, 849, 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” (WPLA),

chapter 7.72 RCW. However, there we noted that the scope of the 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 Power 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). ¶17 Moreover, in 2011 the legislature 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. ¶18 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 must be clear evidence of the legislature’s intent to deviate from the common law, not clear evidence to preserve it. ¶19 When a question arises as to whether a statute abrogates the common law, there is likely to be overlap. See In re Estate of Tyler, 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 statute are inconsistent or the legislature clearly intended to deviate from the 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. ¶20 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. 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 381-83, 386 (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: (

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 United States Supreme Court also addressed necessity and duress defenses 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. Suppl. Br. of Resp’t at 14. ¶21 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 viable legal alternative for Kurtz. If the evidence supports the necessity defense, Kurtz is entitled to a new trial.

CONCLUSION ¶22 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. C. Johnson, Stephens, and Gonzáles, JJ., and Chambers, J. Pro Tem., concur. The Medical Use of Marijuana Act was changed to the Washington State Medical Use of Cannabis Act in 2011. RCW 69.51A.900. The charges in Diana were tried to the bench. Diana, 24 Wn. App. at 913. The legislature has since amended the statute to state that such a use “does not constitute a crime.” RCW 69.51A.040.

This language has since changed to state that the legislature finds that “[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(l)(a). 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. The UCSA was amended in 2013 to reflect the new “Pharmacy Quality Assurance Commission.” This was not a substantive change.

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). 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 international treaty, convention, or protocol.” Marijuana is under

Schedule I of the 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)(10); Single Convention on Narcotic Drugs, opened for signature Mar. 30,1961, No. 6298,18 U.S.T. 1407,1967 WL 90243,1961 U.S.T. LEXIS 8. 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. 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. 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 484. 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 why that provision was not adopted.

Judiciary Comm, of Wash. Legis. Council, Legislative Council’s Judiciary Committee, Revised Washington Criminal Code at ii (Dec. 3, 1970). “[Wlhen 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 Alum. & 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 to 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 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) (No. 15,883); United States v. Ashton, 24 F. Cas. 873 (C.C.D. Mass. 1834) (No. 14,470); 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.

ROW 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.