State of Arizona v. Rodney Christopher Jones , 246 Ariz. 452 ( 2019 )

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
STATE OF ARIZONA,
Appellee,
v.
RODNEY CHRISTOPHER JONES,
Appellant.
No. CR-18-0370-PR
Filed May 28, 2019
Appeal from the Superior Court in Yavapai County
The Honorable Tina R. Ainley, Judge
No. P1300CR201400328
REVERSED
Opinion of the Court of Appeals, Division One
245 Ariz. 46 (App. 2018)
VACATED
COUNSEL:
Sheila Polk, Yavapai County Attorney, Dennis M. McGrane, Chief Deputy
County Attorney, Benjamin D. Kreutzberg (argued), Deputy County
Attorney, Prescott, Attorneys for State of Arizona
Robert A. Mandel (argued), Taylor C. Young, Mandel Young PLC, Phoenix;
and Lee Stein, Anna H. Finn, Mitchell Stein Carey Chapman, PC, Phoenix,
Attorneys for Rodney Christopher Jones
Sarah L. Mayhew, Tucson, Attorney for Amicus Curiae Arizona Attorneys
for Criminal Justice; and Thomas W. Dean, Phoenix, Attorney for Amicus
Curiae National Organization for the Reform of Marijuana Laws
Eric M. Fraser, Osborn Maledon, P.A., Phoenix, Attorneys for Amicus
Curiae Arizona Dispensaries Association
STATE V. JONES
Opinion of the Court
Gary Michael Smith, Smith Saks, PLC, Phoenix, Attorney for Amicus
Curiae Will Humble
Gaye L. Gould, Janet E. Jackim, Philip R. Rudd, Sacks Tierney P.A.,
Scottsdale, Attorneys for Amici Curiae Physicians
Sharon A. Urias, Greenspoon Marder LLP, Scottsdale; and John H. Pelzer,
Greenspoon Marder LLP, Ft. Lauderdale, FL, Attorneys for Amicus Curiae
MPX Bioceutical Corporation
Jared G. Keenan, Kathleen E. Brody, American Civil Liberties Union
Foundation of Arizona, Phoenix; and Emma A. Andersson, American Civil
Liberties Union, New York, NY, Attorneys for Amicus Curiae Qualifying
Patients and Caregivers
Elizabeth Burton Ortiz, Arizona Prosecuting Attorneys’ Advisory Council,
Phoenix, Attorneys for Amicus Curiae Arizona Prosecuting Attorneys’
Advisory Council
Alex Lane, Lane, Hupp, Crowley, PLC, Phoenix, Attorneys for Amici
Curiae Jennifer Welton and Alex Lane
Kathi Mann Sandweiss, Lawrence E. Wilk, Thomas S. Moring, Jaburg &
Wilk, P.C., Phoenix, Attorneys for Receiver for Green Hills Patient Center,
Inc.
VICE CHIEF JUSTICE BRUTINEL authored the opinion of the Court, in
which CHIEF JUSTICE BALES and JUSTICES TIMMER, BOLICK, GOULD,
LOPEZ, and PELANDER (RETIRED) joined.
VICE CHIEF JUSTICE BRUTINEL, opinion of the Court:
¶1 Rodney Christopher Jones appeals his convictions and
sentences arising from his possession of hashish, a form of cannabis resin,
A.R.S. §§ 13-3401(4)(a), -3408(A)(1), arguing that the Arizona Medical
Marijuana Act (“AMMA”) immunizes his conduct. AMMA defines
marijuana as including “all parts of any plant of the genus cannabis
whether growing or not.” A.R.S. § 36-2801(8). Consistent with this
language, we hold that AMMA’s definition of marijuana includes both its
dried-leaf/flower form and extracted resin, including hashish.
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STATE V. JONES
Opinion of the Court
I.
¶2 In March 2013, Jones—a registered qualifying patient under
AMMA—was found in possession of a jar containing 1.43 grams, or 0.050
ounces, of hashish. Jones was charged with possession of cannabis and
possession of drug paraphernalia (the jar). As defined by Arizona’s
criminal code, cannabis is a narcotic drug, § 13-3401(20)(w), consisting of
“[t]he resin extracted from any part of a plant of the genus cannabis, and
every compound, manufacture, salt, derivative, mixture or preparation of
such plant, its seeds or its resin,” § 13-3401(4)(a).
¶3 Jones moved to dismiss the charges, arguing his use was
allowed under AMMA. Relying on State v. Bollander, 110 Ariz. 84 (1973),
the State argued that AMMA does not displace the criminal code
distinctions between cannabis, § 13-3401(4)(a), and marijuana,
§ 13-3401(19), and that AMMA only provides a defense for the use of
marijuana from which the resin has not been extracted. Agreeing with the
State, the trial court denied Jones’s motion. After a bench trial, Jones was
convicted as charged and sentenced to concurrent 2.5-year prison terms.
¶4 The court of appeals affirmed Jones’s convictions in a divided
opinion, holding that AMMA did not immunize his possession of cannabis.
State v. Jones, 245 Ariz. 46, 49–50 ¶¶ 9–15 (App. 2018). We granted review
to determine whether AMMA immunizes cannabis, a recurring issue of
statewide importance. We have jurisdiction under article 6, section 5(3) of
the Arizona Constitution.
II.
¶5 “We review questions of statutory interpretation de novo.”
Reed-Kaliher v. Hoggatt, 237 Ariz. 119, 122 ¶ 6 (2015). Because AMMA was
passed by voter initiative, our primary objective “is to give effect to the
intent of the electorate.” Id. (quoting State v. Gomez, 212 Ariz. 55, 57 ¶ 11
(2006)). The most reliable indicator of that intent is the language of the
statute, and if it is clear and unambiguous, we apply its plain meaning and
the inquiry ends. State v. Burbey, 243 Ariz. 145, 147 ¶ 7 (2017).
¶6 Passed in 2010, “AMMA permits those who meet statutory
conditions to use medical marijuana.” Reed-Kaliher, 237 Ariz. at 122 ¶ 7.
AMMA does so by “broadly immuniz[ing] qualified patients” for their
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STATE V. JONES
Opinion of the Court
medical marijuana use and by “carving out only narrow exceptions from
its otherwise sweeping grant of immunity.” Id. ¶ 8 (citing A.R.S.
§ 36-2811(B)). Specifically, AMMA provides protection “[f]or the registered
qualifying patient’s medical use of marijuana pursuant to this chapter, [so
long as] the registered qualifying patient does not possess more than the
allowable amount of marijuana.” § 36-2811(B)(1). AMMA defines
“marijuana” to mean “all parts of any plant of the genus cannabis whether
growing or not, and the seeds of such plant.” § 36-2801(8).
¶7 The court of appeals’ majority determined that voters only
intended to immunize the use of marijuana as defined by the criminal code,
meaning the dried leaves or flowers of the cannabis plant, but not the use
of cannabis, the resin extracted from the marijuana plant. Jones, 245 Ariz.
at 49 ¶ 9 (“[B]y not specifically including extracted resin within its
description of immunized marijuana, AMMA adopts the preexisting law
distinguishing between cannabis and marijuana.” (internal quotation
marks omitted)); see also § 13-3401(19) (defining “marijuana” to mean “all
parts of any plant of the genus cannabis, from which the resin has not been
extracted”); cf. Bollander, 110 Ariz. at 87 (concluding “that the legislature has
recognized hashish and marijuana as two distinct forms of cannabis”). We
disagree.
¶8 We start with the statutory language. Because AMMA
specifically defines “marijuana,” we apply the statutory definition and look
to neither the criminal code nor common understanding. See Enloe v. Baker,
94 Ariz. 295, 298 (1963). Indeed, AMMA’s definition of “marijuana” stands
on its own: it neither cross-references nor incorporates the criminal code
definition. Cf. State v. Pirello, 282 P.3d 662, 663–65 ¶¶ 11–18 (Mont. 2012)
(recognizing that the Montana Medical Marijuana Act cross-references and
incorporates the criminal code distinction between marijuana and hashish).
¶9 AMMA defines “marijuana” as “all parts of [the] plant.”
§ 36-2801(8). The word “all,” one of the most comprehensive words in the
English language, means exactly that. See Flood Control Dist. of Maricopa Cty.
v. Gaines, 202 Ariz. 248, 252 ¶ 9 (App. 2002). “Part” means “an essential
portion or integral element,” or, as relevant here, “one of the constituent
elements of a plant or animal body.” Part, Merriam-Webster,
https://www.merriam-webster.com/dictionary/part (last visited May 20,
2019). Taken together, “all parts” refers to all constituent elements of the
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STATE V. JONES
Opinion of the Court
marijuana plant, and the fact the resin must first be extracted from the plant
reflects that it is part of the plant.
¶10 The State nevertheless argues AMMA does not apply to resin
or its extracts. Again, we disagree. Section 36-2811(B)(1) immunizes the
patient’s “medical use” of marijuana, defined to mean “the acquisition,
possession, cultivation, manufacture, use, administration, delivery, transfer
or transportation of marijuana or paraphernalia relating to the
administration of marijuana to treat or alleviate a registered qualifying
patient’s debilitating medical condition.” § 36-2801(9) (emphasis added).
AMMA does not define “manufacture” but it commonly means “to make
into a product suitable for use.” Manufacture, Merriam-Webster,
https://www.merriam-webster.com/dictionary/manufacture (last visited
May 20, 2019); see also § 13-3401(17) (defining “manufacture” in the criminal
code as to “produce, prepare, propagate, compound, mix or process,
directly or indirectly, by extraction from substances of natural origin or
independently by means of chemical synthesis, or by a combination of
extraction and chemical synthesis” (emphasis added)). AMMA anticipates
not only that dispensaries will produce marijuana in edible form, see
§ 36-2801(15) (defining “usable marijuana” to include mixtures or
preparations, to be “prepared for consumption as food or drink”), but also
that patients will “consume[ marijuana] by a method other than smoking,”
see A.R.S. § 36-2805(A)(3). Taken together, these statutes indicate AMMA’s
intent to allow the manufacture and preparation of parts of the marijuana
plant for medical use, including extracting the resin.
¶11 We are likewise unpersuaded by the State’s argument that
§§ 36-2811(B)(1) and 36-2801(1), (15) limit marijuana use to dried flowers.
Section 36-2811(B)(1) provides that a registered qualifying patient may not
possess more “than the allowable amount of marijuana.” Section 36-2801(1)
provides that the allowable amount of marijuana is two-and-one-half
ounces of “usable marijuana,” which § 36-2801(15) defines as “the dried
flowers of the marijuana plant, and any mixture or preparation thereof, but
does not include the seeds, stalks and roots of the plant and does not
include the weight of any non-marijuana ingredients combined with
marijuana and prepared for consumption as food or drink.” The State
argues that by conjunction these provisions limit marijuana use to “dried
flowers.” See People v. Carruthers, 837 N.W.2d 16, 21–24 (Mich. Ct. App.
2013) (giving controlling weight to the Michigan Medical Mari[j]uana Act’s
definition of “usable mari[j]uana,” meaning “dried leaves and flowers of
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STATE V. JONES
Opinion of the Court
the mari[j]uana plant,” and concluding it does not include “all parts” of the
cannabis plant or its resin).
¶12 But § 36-2811(B)(1) protects “the registered qualifying
patient’s medical use of marijuana,” not just the use of the dried flowers of the
marijuana plant. (Emphasis added.) Section 36-2801(8) provides the
definition of marijuana, and nothing in § 36-2801(1) or (15) alters its
meaning. Rather, by its own language, the limitation in § 36-2801(1) and
(15) pertains only to the amount of marijuana the patient can legally possess,
not the type or form of marijuana one may possess and use. See Amount,
Merriam-Webster, https://www.merriam-webster.com/dictionary/
amount (last visited May 20, 2019) (defining “amount” to mean “the total
number or quantity”). Accordingly, we decline to follow Carruthers.1
¶13 Section 36-2806.02 supports this view. First, it authorizes
dispensaries to dispense “marijuana”: it includes no reference or limitation
to “usable marijuana.” § 36-2806.02(A)–(B). We decline to adopt an
interpretation that presents contradictory definitions and allows the
dispensary to dispense “marijuana”—all parts of the plant—but only
allows the patient to receive “usable marijuana”—the dried flowers of the
plant. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation
of Legal Texts 180 (2012) (“The provisions of a text should be interpreted in
a way that renders them compatible, not contradictory.”). Second, in
dispensing marijuana, the dispensary is required to list “[h]ow much
marijuana is being dispensed,” § 36-2806.02(B)(1), and to determine
whether the amount to be dispensed would cause patients to exceed their
two-and-one-half-ounce limit, § 36-2806.02(A)(3). Section 36-2806.02 thus
supports our interpretation that the limitation refers to the quantity of
marijuana that may be dispensed, not its type or form.
¶14 The State contends that such a reading will result in the
allowance of two-and-one-half ounces of cannabis, equivalent to far more
than two-and-one-half ounces of dried flowers and leaves. We disagree. In
defining what AMMA protects, § 36-2801(8) defines marijuana broadly. See
supra ¶¶ 9–12; see also § 36-2811(B) (immunizing the “qualifying patient’s
medical use of marijuana”). In defining how much marijuana may be
1 Post-Carruthers, the Michigan Medical Mari[j]uana Act’s definition of
“usable mari[j]uana” was amended to include “resin” and “extract.” See
Mich. Comp. Laws § 333.26423(n).
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STATE V. JONES
Opinion of the Court
possessed, however, § 36-2801(1) and (15) define the weight more narrowly.
See § 36-2811(B) (limiting patients’ marijuana possession to the “allowable
amount of marijuana”). Section 36-2801(1) provides that the “allowable
amount of marijuana” is “[t]wo-and-one-half ounces of usable marijuana,”
which subsection (15) defines as “the dried flowers of the marijuana plant,
and any mixture or preparation thereof.” AMMA’s weight limitation is
based on “two-and-one-half ounces” of “the dried flowers of the marijuana
plant,” regardless of the weight of the product manufactured from those
flowers.
¶15 As stated above, AMMA extends to manufactured marijuana
products using extracted resin. See supra ¶ 10. Under § 36-2801(15), these
products are “mixture[s] or preparation[s]” of the dried flowers of the
marijuana plant. We therefore read § 36-2801(1) and (15) to mean
qualifying patients are allowed two-and-one-half ounces of dried flowers,
or mixtures or preparations made from two-and-one-half ounces of dried
flowers.2
¶16 A plain reading of the relevant provisions compels our
conclusion that AMMA protects the use of “marijuana,” including resin, so
long as the patient does not exceed the allowable amount and otherwise
complies with the statutory requirements. Consideration of AMMA’s
purpose and ballot materials support this plain reading. See Ruiz v. Hull,
191 Ariz. 441, 450 ¶ 36 (1998) (stating that we may consider ballot materials
in construing initiatives).
¶17 AMMA appeared on the 2010 ballot as Proposition 203. The
accompanying ballot materials stated Proposition 203’s purpose was to
“protect patients with debilitating medical conditions . . . from arrest and
prosecution” for their “medical use of marijuana.” Ariz. Sec’y of State, 2010
Publicity Pamphlet 73 (2010), https://apps.azsos.gov/election/
2010/info/PubPamphlet/english/e-book.pdf. Proposition 203 was
intended to allow the use of marijuana in connection with a wide array of
debilitating medical conditions, including “cancer, glaucoma, . . .
amyotrophic lateral sclerosis, Crohn’s disease, [and] agitation of
Alzheimer’s disease,” including “relief [from] nausea, vomiting and other
2 We express no opinion on how much resin may be extracted from, or how
much “mixture” may be obtained from, two-and-one-half ounces of dried
flowers.
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STATE V. JONES
Opinion of the Court
side effects of drugs” used to treat debilitating conditions. Id. It is
implausible that voters intended to allow patients with these conditions to
use marijuana only if they could consume it in dried-leaf/flower form.
Such an interpretation would preclude the use of marijuana as an option
for those for whom smoking or consuming those parts of the marijuana
plants would be ineffective or impossible. Consistent with voter intent, our
interpretation enables patients to use medical marijuana to treat their
debilitating medical conditions, in whatever form best suits them, so long
as they do not possess more than the allowable amount.
¶18 Separately, the State argues AMMA is preempted by the
Comprehensive Drug Abuse Prevention and Control Act, which is
comprised of two components, the Controlled Substances Act (“CSA”), 21
U.S.C. §§ 801–971, and the Food, Drug, and Cosmetic Act (“FDCA”), 21
U.S.C. §§ 301–399i. But the State did not raise this argument before the
court of appeals or in its petition for review to this Court. Though the State
urges us to nevertheless consider the issue because it is one of statewide
importance, see, e.g., Barrio v. San Manuel Div. Hosp. for Magma Copper Co.,
143 Ariz. 101, 104 (1984), we previously rejected a preemption challenge
based on the CSA in Reed-Kaliher, 237 Ariz. at 123–25 ¶¶ 18–24, and the State
offers no persuasive reason to revisit that decision. As to the FDCA, the
State’s preemption argument is undeveloped, and we thus decline to
consider it. See Hawkins v. Allstate Ins. Co., 152 Ariz. 490, 503 (1987) (stating
the Court may hear issues though they were not properly raised but
declining to exercise that power).
III.
¶19 We hold that the definition of marijuana in § 36-2801(8)
includes resin, and by extension hashish, and that § 36-2811(B)(1)
immunizes the use of such marijuana consistent with AMMA. We reverse
the trial court’s ruling denying Jones’s motion to dismiss, vacate the court
of appeals’ opinion, and vacate Jones’s convictions and sentences.
8