State of Arizona v. Robert Gear

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
STATE OF ARIZONA,
Appellant,
v.
ROBERT GEAR,
Appellee.
No. CR-14-0408-PR
Filed May 6, 2016
Appeal from the Superior Court in Navajo County
The Honorable Ralph E. Hatch, Judge
No. CR-2013-00089
REVERSED AND REMANDED
Opinion of the Court of Appeals, Division One
236 Ariz. 289, 339 P.3d 1034 (App. 2014)
VACATED
COUNSEL:
Brad Carlyon, Navajo County Attorney, Galen H. Wilkes (argued), Deputy
Navajo County Attorney, Holbrook, Attorneys for State of Arizona
Kimberly A. Kent (argued), Kent Law Group, PLLC, Phoenix, Attorney for
Robert Gear
William G. Montgomery, Maricopa County Attorney, Bruce P. White,
Joseph J. Branco, and Diane Meloche, Deputy County Attorneys, Phoenix,
Attorneys for Amicus Curiae Maricopa County Attorney
Mark Brnovich, Arizona Attorney General, John R. Lopez IV (argued),
Solicitor General, Maria M. Syms, Assistant Attorney General, Phoenix,
Attorneys for Amicus Curiae Arizona Attorney General Mark Brnovich
STATE v. GEAR
Opinion of the Court
JUSTICE BOLICK authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES
BRUTINEL and TIMMER joined.
JUSTICE BOLICK, opinion of the Court:
¶1 This case presents the question of whether the Arizona
Medical Marijuana Act (“AMMA” or “the Act”) immunizes a physician
against prosecution for falsely attesting that he reviewed a patient’s medical
records from the previous twelve months before providing a written
certification authorizing medical marijuana use. We hold that AMMA does
not grant such immunity.
I. BACKGROUND
A. Arizona Medical Marijuana Act
¶2 Arizona voters enacted AMMA, A.R.S. § 36–2801, et seq., by
ballot initiative in 2010 (Proposition 203). The Act provides that a
“qualifying patient” diagnosed with a “debilitating medical condition”
may obtain a registry card from the Arizona Department of Health Services
(“DHS”), and thereby obtain immunity from prosecution for the
acquisition, possession, and use of medical marijuana under the statutory
conditions. See A.R.S. §§ 36–2801(3), (13), –2804.02, –2811(B).
¶3 To register with DHS, a qualified patient must first obtain a
physician’s “written certification,” which AMMA defines as:
a document dated and signed by a physician, stating 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
debilitating medical condition. The physician must:
(a) Specify the qualifying patient’s debilitating medical
condition in the written certification.
2
STATE v. GEAR
Opinion of the Court
(b) Sign and date the written certification only in the
course of a physician-patient relationship after the
physician has completed a full assessment of the
qualifying patient’s medical history.
A.R.S. § 36-2801(18). AMMA does not define “physician-patient
relationship” or “full assessment of the qualifying patient’s medical
history.”
¶4 Physicians are immunized from prosecution for providing
written certifications under AMMA. At issue here is § 36–2811(C), which
provides:
A physician shall not be subject to arrest, prosecution or
penalty in any manner or denied any right or privilege,
including but not limited to civil penalty or disciplinary
action by the Arizona board of medical examiners or by any
other business, occupational or professional licensing board
or bureau, based solely on providing written certifications or
for otherwise stating that, in the physician’s professional
opinion, a 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 debilitating medical condition, but
nothing in this chapter prevents a professional licensing
board from sanctioning a physician for failing to properly
evaluate a patient’s medical condition or otherwise violating
the standard of care for evaluating medical conditions.
A.R.S. § 36-2811(C).
¶5 In addition to immunizing certain individuals against
prosecution or punishment in the medical marijuana context, “the
electorate ‘required’ [DHS] ‘to adopt and enforce a regulatory system for
the distribution of marijuana for medical use.’” State v. Matlock, 237 Ariz.
331, 336 ¶ 20, 350 P.3d 835, 840 (App. 2015) (quoting Proposition 203 ballot
pamphlet). Section 36–2803 gives DHS certain rulemaking authority,
including the power under § 36-2803(A)(2) of “[e]stablishing the form and
3
STATE v. GEAR
Opinion of the Court
content of registration and renewal applications submitted under this
chapter.” By regulation, DHS specified what is required to perform a “full
assessment of the qualifying patient’s medical history,” including
reviewing the patient’s “medical records from other treating physicians
from the previous 12 months.” Ariz. Admin. Code R9–17–202(F)(5)(i)(i).
The regulation also requires the physician to attest to the truth and accuracy
of the information set forth in the written certification. Id. at R9-17-
202(F)(5)(m).
B. Facts and Procedural History
¶6 On September 1, 2012, a Navajo County drug task force
confidential informant (“C.I.”), in connection with an undercover
investigation of an alleged illicit medical marijuana cooperative, visited Dr.
Robert Gear to obtain a written certification for medical marijuana. The C.I.
completed a questionnaire and medical records statement. On the latter
form, she indicated that she had visited other physicians within the past
twelve months but did not “have a complete set of medical records with
[her].” The C.I. agreed to furnish the records to Dr. Gear no later than her
next visit.
¶7 Following a medical examination, Dr. Gear certified the C.I.
for medical marijuana use. Despite never reviewing her medical records
from the preceding twelve months, he indicated on the written certification
that he had done so. He also attested that “the information provided in the
written certification is true and correct.”
¶8 A grand jury indicted Dr. Gear on one count of forgery under
A.R.S. § 13–2002 and one count of fraudulent schemes and artifices under
§ 13–2310. The trial court dismissed the indictment, ruling that § 36–
2811(C) immunizes Dr. Gear against prosecution on those charges. The
court of appeals affirmed. State v. Gear, 236 Ariz. 289, 339 P.3d 1034 (App.
2014).
¶9 We granted review because the scope of AMMA’s physician
immunity under § 36-2811(C) presents a recurring issue of statewide
importance. We have jurisdiction under article 6, section 5(3) of the Arizona
Constitution and A.R.S. § 12-120.24.
4
STATE v. GEAR
Opinion of the Court
II. DISCUSSION
¶10 We begin by noting two issues that are not before us. First,
the parties have not addressed whether the DHS requirement that a
physician review twelve months of prior physician records before
certifying a patient for medical marijuana falls within the prescribed scope
of the agency’s regulatory authority under AMMA. Second, we do not
address the propriety of the undercover investigation that resulted in Dr.
Gear’s indictment.
¶11 Rather, the sole question before this Court is whether AMMA
immunizes the alleged false statements Dr. Gear made in his certification.
We review questions of statutory interpretation de novo and construe ballot
measures to effect the voters’ intent. Reed-Kaliher v. Hoggatt, 237 Ariz. 119,
122 ¶ 6, 347 P.3d 136, 139 (2015). AMMA’s “purpose . . . is to protect
patients with debilitating medical conditions, as well as their physicians
and providers, from arrest and prosecution, criminal and other penalties
and property forfeiture if such patients engage in the medical use of
marijuana.” Prop. 203, § 2(G), Ariz. Sec’y of State, 2010 Publicity Pamphlet
83, available at
http://apps.azsos.gov/election/2010/Info/PubPamphlet/English/Prop2
03.htm.
¶12 Both the State and Dr. Gear urge constructions that do not
find support in the Act’s language or intent. The State argues that physician
immunity extends only to “providing” written certifications, and not
“preparing” them. The State’s constricted reading of the word “providing,”
however, would render the immunity almost meaningless, as a physician
could be prosecuted for each step short of delivering the certification to the
patient.
¶13 Dr. Gear argues that physician immunity extends to any
conduct “related to certification.” Such a sweeping application of
immunity could lead to troublesome outcomes that would be difficult to
square with the intent or language of the Act. For instance, would
immunity extend to theft or sexual assault committed in the course of a
physical examination conducted during the certification process? Dr.
5
STATE v. GEAR
Opinion of the Court
Gear’s interpretation is foreclosed by the Act’s language, which in relevant
part provides immunity from prosecution “based solely on providing
written certifications.” A.R.S. § 36-2811(C).
¶14 Dr. Gear does not point to any language or voter intent
indicating that AMMA is meant to immunize individuals against
prosecution for other crimes they may commit that are related to or arise
from the protected activity. As discussed below, the use of the word
“solely” expresses the intent to shield from criminal prosecution only the
provision of medical marijuana certifications and professional opinions, not
other conduct that might expose the physician to adverse consequences,
even if that conduct is related to providing a written certification or
expressing a professional opinion.
¶15 In interpreting § 36-2811(C), the court of appeals did not
consider the qualifier “solely,” but instead noted that the statute grants
immunity for “providing written certification or for otherwise stating that, in
the physician’s professional opinion, a patient is likely to receive” benefit
from medical marijuana. Gear, 236 Ariz. at 292 ¶ 11, 339 P.3d at 1037
(quoting A.R.S. § 36-2811(C)). This language immunizes two different
though related types of actions: “providing written certification” and
“otherwise stating” the physician’s medical judgment. By applying the
term “solely,” the immunity is limited to those two actions and excludes
from immunity any act that goes beyond those actions, even if it is related
to them. Here the prosecution is not directed toward immunized conduct
but is instead based on Dr. Gear falsely attesting that he inspected medical
records that he did not, in fact, review.
¶16 If, as here, the criminal charges are not based “solely” on
protected conduct—where they are directed not toward the medical
judgment or the certification itself but to an act of dishonesty—then they
are not shielded from prosecution or punishment by the Act’s plain
language. “Solely,” both in ordinary usage1 and as a legal term of art, is a
highly restrictive term that consistently has been interpreted, including in
the context of medical marijuana decisions, to strictly limit the scope of the
1 Solely is defined as “singly” or “alone.” See Webster’s Third New
International Dictionary 2168 (2002).
6
STATE v. GEAR
Opinion of the Court
legal protection or proscription that follows.
¶17 In Dobson v. McClennen, 238 Ariz. 389, 361 P.3d 374 (2015), this
Court affirmed the conviction of a defendant charged with driving with an
impermissible drug or metabolite in her body. The defendant argued that
AMMA immunized her as a medical marijuana cardholder from
prosecution for driving under the influence (DUI). The Court recognized
that “AMMA broadly immunizes [cardholders] from prosecution for using
medical marijuana consistent with the Act.” Id. at 390 ¶ 1, 361 P.3d at 375.
At the same time, Arizona criminal statutes prohibit, among other things,
driving while there is any specified drug, including cannabis or its
metabolite, in the person’s body. Id. at ¶ 2, 361 P.3d at 375. As here, the
case presented the interplay between criminal statutes and medical
marijuana immunity.
¶18 Dobson is not a perfect analogy because AMMA specifically
provides that the state is not prohibited from prosecuting individuals for
operating a motor vehicle while under the influence of marijuana. See
A.R.S. § 36–2802(D). But central to the Court’s analysis in Dobson was the
language of the statutory immunity, which provides that “a registered
qualifying patient shall not be considered to be under the influence of
marijuana solely because of the presence of metabolites or components of
marijuana that appear in insufficient concentration to cause impairment.”
238 Ariz. at 391 ¶ 9, 361 P.3d at 376 (emphasis added) (quoting A.R.S. § 36-
2802(D)). The Court found unconvincing the argument that such language,
qualified by the term “solely,” provides absolute immunity against DUI
charges. Id. at 392 ¶ 15, 361 P.3d at 377. Rather, the Court held, “When read
together, the statutory provisions suggest that the AMMA gives qualifying
patients a limited defense rather than a general immunity” in the context of
DUI prosecutions, id. at ¶ 17, 361 P.3d at 377, allowing defendants to
demonstrate that the concentrations of marijuana were insufficient to cause
impairment. Id. at 393 ¶ 21, 361 P.3d at 378 (“The risk of uncertainty in this
regard should fall upon the patients, who generally know or should know
if they are impaired and can control when they drive, rather than on the
members of the public whom they encounter on our streets.”).
¶19 Similar reasoning applies here. Dr. Gear is not being
prosecuted for providing a written certification but for lying about
7
STATE v. GEAR
Opinion of the Court
compliance with rules issued by DHS, whose authority Dr. Gear does not
contest. Given the restrictive effect of the term “solely,” we do not impute
intent on the part of the voters to immunize physicians against crimes such
as forgery or fraudulent schemes. Holding otherwise would expose
Arizonans, including medical marijuana cardholders themselves, to
harmful conduct that we should not lightly infer that the voters sought to
immunize. “When two statutes conflict, we adopt a construction that
reconciles them whenever possible, giving force and meaning to each.”
State v. Jones, 235 Ariz. 501, 502 ¶ 6, 334 P.3d 191, 192 (2014). Our
interpretation here preserves both AMMA’s broad physician immunity and
the criminal statutes under which Dr. Gear was charged.
¶20 Courts in California, whose medical marijuana laws predate
Arizona’s, likewise have narrowly construed immunity from prosecution
when limited by the statutory adjective “sole.” In People v. Mentch, 195 P.3d
1061 (Cal. 2008), the California Supreme Court construed an immunity
provided to primary caregivers in the medical marijuana context. One of
the questions before the court was whether a provision that immunized
such individuals against prosecution for assisting in administering,
advising, or counseling in the administration or cultivation of medical
marijuana “on that sole basis” would preclude prosecution of such
individuals for marijuana cultivation or possession. Id. at 1072. The court
held that the words “on that sole basis” did not mean that the defendant
“could not be charged with cultivation or possession for sale on any basis;
to the extent that he went beyond the immunized range of conduct, i.e.,
administration, advice, and counseling, he would, once again, subject
himself to the full force of the criminal law.” Id. at 1073. Other California
decisions also have narrowly construed the scope of the state’s medical
marijuana laws when qualified by the term “sole basis” in the public
nuisance context. See City of Riverside v. Inland Empire Patients Health &
Wellness Ctr., Inc., 300 P.3d 494 (Cal. 2013) (rejecting the argument that
medical marijuana laws preempt local ban on dispensaries); Kirby v. Cty. of
Fresno, 242 Cal. App. 4th 940 (2015) (concluding that the medical marijuana
laws did not preempt city’s ability to regulate the cultivation of marijuana).
Here, too, Dr. Gear “went beyond the immunized range of conduct”—
providing written certifications or expressing professional opinions—to
falsely avow that he had reviewed certain medical records. As a result, he
subjected himself to the full force of criminal prosecution—not for his
8
STATE v. GEAR
Opinion of the Court
professional medical opinions, which are protected, but for his false
misrepresentation of fact, which is not.
¶21 We are not convinced by Dr. Gear’s argument that affording
immunity here is supported by § 36–2811(C)’s statement that “nothing in
this chapter prevents a professional licensing board from sanctioning a
physician for failing to properly evaluate a patient’s medical condition or
otherwise violating the standard of care for evaluating medical conditions.”
That a physician may be professionally disciplined for malpractice in
connection with certifying a patient for medical marijuana use does not,
either by the statutory terms or logically, suggest that such discipline is the
only sanction for making false statements in a certification.
¶22 Nor are we persuaded that allowing the prosecution to
proceed “would have a chilling effect on the voluntary participation of
physicians, and, thereby, hinder qualifying patients’ efforts to obtain
competent medical advice regarding medical marijuana, its medical risks,
and its alleged therapeutic and palliative benefits.” Gear, 236 Ariz. at 294
¶ 21, 339 P.3d at 1039. Nothing in our opinion should be read to limit or
threaten such protected activities. Cf. Reed-Kaliher, 237 Ariz. at 122 ¶ 7, 347
P.3d at 139 (protecting the AMMA rights of probationers). Physicians are
trained and relied upon to be scrupulous. The import of a false attestation
is obvious. The boundaries between law enforcement and protected
physician activities were fixed when the voters forbade prosecution and
punishment based “solely” upon the specified protected activities.
¶23 In sum, AMMA immunizes physicians from prosecution or
penalties based solely on their providing the statutorily authorized
certifications or otherwise stating a professional opinion regarding the
therapeutic and palliative benefits of medical marijuana use. It does not
immunize other conduct, such as making a false statement in a written
certification.
III. CONCLUSION
¶24 For the foregoing reasons, we vacate the opinion of the court
of appeals, we reverse the trial court’s order of dismissal, and remand the
case to the trial court for further proceedings consistent with this decision.
9