State v. Kemmish , 418 P.3d 1087 ( 2018 )


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  •                                 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
    2
    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).
    4
    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).
    5
    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
    6
    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
    9