State v. Reis

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IN CLERKS OFFICE
IUPREME CC'.Ji"\T, STAn! OF WASHINOlON
DA'i':I MAY 0 7 2015
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CHIEF JU$ lCE
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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
)
Respondent, ) No. 90281-0
)
v. ) En Bane
)
WILLIAM MICHAEL REIS, )
) Filed MAY 0 7 2015
Petitioner. )
)
WIGGINS, J.-William Reis was charged with manufacturing a controlled
substance after a search of his home produced evidence of a marijuana grow
operation. Reis moved to suppress the results of the search on the ground that the
search warrant was invalid, arguing that the 2011 amendments to the Washington
State Medical Use of Cannabis Act (MUCA), chapter 69.51A RCW, decriminalized the
possession of cannabis for medical use. The trial court denied Reis's motion to
suppress, and the Court of Appeals granted discretionary review and affirmed.
The 2011 amendments to RCW 69.51A.040 provide in relevant part that the
"medical use of cannabis in accordance with the terms and conditions of this chapter
does not constitute a crime . . . . " (Emphasis added.) One of these "terms and
conditions" is that a medical user must be registered with a registry established by
State v. Reis (William Michael), No. 90281-0
section 901 of the 2011 MUCA amendments. RCW 69.51A.040(2), (3). But the
governor vetoed section 901, and no registry currently exists. It is thus impossible to
register "in accordance with the terms and conditions of this chapter ... " after the
governor's veto.
We hold that the plain language of MUCA, supported by the context in which
the language appears, the overall statutory scheme, and the legislative intent as
captured by the governor's veto message, does not support the conclusion that the
medical use of marijuana is not a crime. Therefore, we affirm the Court of Appeals and
remand for trial.
FACTS
Detective Thomas Calabrese received an anonymous tip in 2012 from an
individual living in the Shorewood area of Burien, informing him that a man named
"William" was actively growing marijuana in a house in that neighborhood. The
informant, who feared retaliation by Reis, declined to provide any additional
information. Calabrese later drove through Shorewood and was able to observe six
marijuana plants growing on the back porch of a home. He then observed an individual
tending those plants. He noted the address and left.
Detective Calabrese then asked and was granted permission to use a
neighbor's yard to observe the porch. From this vantage point, Calabrese was able to
observe the plants on the porch. He also heard a distinct humming sound coming from
the northwest side of the target home and observed black plastic covering the daylight
basement window. Calabrese also noticed condensation on this window.
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State v. Reis (William Michael), No. 90281-0
Leaving his vantage point, Calabrese drove past the target house and noted
the license plate number on the vehicle parked in front of the house. A directory search
of the plate indicated that the vehicle belonged to William Reis. Calabrese began
checking that name and discovered that Reis had been arrested in 2005 for domestic
violence. During that arrest, officers discovered a large marijuana grow operation in
the basement, as well as a rifle and $18,000 cash hidden in the attic. Additional
searches of Reis's financial records in 2005 connected him to a large marijuana grow
operation in California. Detective Calabrese also learned that Reis had been arrested
in 2011 for possession of 1.3 grams of marijuana.
Calabrese obtained Reis's 2005 booking photo and found that it matched the
individual he observed tending the marijuana plants on the porch. He then returned to
Shorewood to interview neighbors in an effort to determine whether Reis was selling
or distributing marijuana. However, none of Reis's neighbors would talk to him. They
each asserted that they were afraid of Reis and that they did not want Reis to retaliate
against them. One of the neighbors even informed Calabrese that they had purchased
a firearm specifically to protect themselves from Reis.
Detective Calabrese put all of this information in an affidavit of probable cause
to support a search warrant of Reis's home. Judge Eide granted a search warrant,
finding probable cause to believe that Reis was violating Washington's Uniform
Controlled Substances Act, chapter 69.50 RCW. 1 A search of Reis's home pursuant
1 Calabrese'saffidavit did not allege a violation of federal law, and the record does not suggest
the he was pursuing a violation of federal law. Therefore, the sole question on appeal is
whether Detective Calabrese had probable cause of a violation of state law. See United
States v. $186,416.00 in U.S. Currency, 590 F.3d 942, 948 (9th. Cir. 2009) (requiring state
3
State v. Reis (William Michael), No. 90281-0
to the search warrant revealed plants, scales, ledgers, sales receipts, and tools
indicative of a marijuana grow operation. The search also revealed 37 plants and
210.72 ounces of cannabis. 2
The State charged Reis with violating chapter 69.50 RCW, the Uniform
Controlled Substances Act. Reis moved to suppress the evidence found in his home,
asserting that the search warrant was not supported by probable cause. The trial court
denied Reis's motion to suppress. The trial court granted Reis's motion for expedited
discretionary review in the Court of Appeals and certified this issue for immediate
review under RAP 2.3(b)(4) 3 before Reis's scheduled trial date. The Court of Appeals,
Division One, granted discretionary review and held in a published opinion that the
authorized use of medical marijuana under RCW 69.51A.040 does not preclude an
officer from searching; compliant use under the statute is an affirmative defense that
does not negate probable cause required for a search warrant. State v. Reis, 180 Wn.
App. 438, 322 P.3d 1238 (2014). We granted review and now affirm.
law enforcement officers to indicate pursuits of violations of federal law in their affidavits, or
to seek a search warrant from a federal magistrate, to support a finding of probable cause for
the violation of a federal crime).
2The "terms and conditions" of RCW 69.51A.040(1 )(a)(i) that render the medical use of
marijuana legal require that a qualifying patient or designated provider possess no more than
15 marijuana plants and no more than 24 ounces of useable cannabis.
3 RAP 2.4(b)(4) provides for discretionary review when "[t]he superior court has certified ...
that the order involves a controlling question of law as to which there is substantial ground for
a difference of opinion and that immediate review of the order may materially advance the
ultimate termination of the litigation."
4
State v. Reis (William Michael), No. 90281-0
ANALYSIS
This case asks us to determine whether RCW 69.51A.040, as enacted following
Governor Gregoire's 2011 veto, decriminalizes the medical use of marijuana. 4 In
answering this question, we apply well established principles of statutory interpretation
to chapter 69.51A RCW. These principles lead to the conclusion that the medical use
of marijuana is not lawful because compliance with RCW 69.51A.040 is currently
impossible. Further, we reject Reis's arguments regarding the effect of the governor's
veto; riothing about the veto process changes our analysis of the enacted statute.
I. Standard of Review
We review questions of statutory interpretation de novo. Ass'n of Wash. Spirits
& Wine Distrib. v. Wash. State Liquor Control Bd., 182 Wash. 2d 342, 350, 340 P.3d 849
(2015). The court discerns legislative intent from the plain language enacted by the
legislature, considering the text of the provision in question, the context of the statute
in which the provision is found, related provisions, amendments to the provision, and
the statutory scheme as a whole. /d. (citing Dep't of Ecology v. Campbell & Gwinn,
LLC, 146 Wash. 2d 1, 9-10, 43 P.3d 4 (2002)).
II. Overview of Washington's Medical Marijuana Laws
Marijuana is generally a schedule I unlawful controlled substance, the
possession or cultivation of which is prohibited. 5 RCW 69.50.204(c)(22); RCW
4Reis concedes the search was valid if we conclude that chapter 69.51A RCW provides only
an affirmative defense. This opinion does not discuss the propriety of the search because we
hold that the statute provides qualifying patients and designated providers with only an
affirmative defense.
5Initiative Measure 502, approved in November 2012, legalized the possession of small
amounts of marijuana. The initiative was not in effect when this search warrant issued, and
5
State v. Reis (William Michael), No. 90281-0
69.50.401 (1 ). It has maintained this classification by the Washington State Legislature
since 1971. RCW 69.50.204(c)(22). Since 1971, the possession, manufacture, and
distribution of marijuana has been generally prohibited. See RCW 69.50.401-.455.
However, in 1998, the legislature enacted the MUCA, chapter 69.51A RCW, creating
an exception for the medicinal use of marijuana. This exception created an affirmative
defense for qualifying patients and designated caregivers who could establish that
they complied with the requirements of that chapter. Former RCW 69.51A.040(1)
(1998).
In 2011, the legislature amended MUCA by adopting Engrossed Second
Substitute Senate Bill (E2SSB) 5073. The stated purpose of these amendments, as
asserted in section 101 (vetoed), was to ensure that
(a) Qualifying patients and designated providers complying with
the terms of this act and registering with the department of health will no
longer be subject to arrest or prosecution, other criminal sanctions, or
civil consequences based solely on their medical use of cannabis;
(b) Qualifying patients will have access to an adequate, safe,
consistent, and secure source of medical quality cannabis; and
(c) Health care professionals may authorize the medical use of
cannabis in the manner provided by this act without fear of state criminal
or civil sanctions.
E2SSB 5073, § 101 (as passed by the legislature) (vetoed); see LAWS OF 2011, ch.
181, § 101. In order to achieve these goals, the legislature created a two-tiered system
of medical exceptions to the general prohibitions on possessing or cultivating
marijuana. E2SSB 5073 §§ 401, 402, 406 (codified as RCW 69.51A.040, .043(1 ), (2)).
the parties agree that the initiative has no bearing on this case. We do not consider or analyze
the initiative in this opinion.
6
State v. Reis (William Michael), No. 90281-0
Section 901 of the bill directed the state Department of Health and the state
Department of Agriculture to "adopt rules for the creation, implementation,
maintenance, and timely upgrading of a secure and confidential registration system."
E2SSB 5073, § 901 (1 ). Any established registry was required to allow
(a) A peace officer to verify at any time whether a health care
professional has registered a person as either a qualifying patient or a
designated provider; and
(b) A peace officer to verify at any time whether a person,
location, or business is licensed ....
E2SSB 5073, § 901 (as passed by the legislature) (vetoed); see LAWS OF 2011, ch.
181, § 901. Registration of qualifying patients and designated providers was optional.
Registration would place the burden on law enforcement officials to establish that the
terms and conditions of the medical marijuana exceptions were not being satisfied.
E2SSB 5073, § 901 (4) (vetoed); see RCW 69.51A.040. Once established, the registry
would provide registered users heightened protection from arrest, prosecution,
criminal sanctions, and civil consequences based solely on their medical use of
marijuana. E2SSB 5073, § 102(2)(a) (codified as RCW 69.51A.005(2)). Otherwise
compliant but nonregistered, users were entitled to raise an affirmative defense.
E2SSB 5073, § 402 (codified as RCW 69.51A.043).
In April 2011, the United States Attorneys for the Eastern and Western Districts
of Washington wrote an advisory letter to Governor Gregoire regarding Laws of 2011,
chapter 181. This letter explained the Department of Justice's position on the bill:
"The Washington legislative proposals will create a licensing
scheme that permits large-scale marijuana cultivation and distribution.
This would authorize conduct contrary to .federal law and thus, would
undermine the federal government's efforts to regulate the possession,
manufacturing, and trafficking of controlled substances .... In addition,
state employees who conducted activities mandated by the Washington
7
State v. Reis (William Michael), No. 90281-0
legislative proposals would not be immune from liability under the CSA
[Controlled Substances Act, 21 U.S.C. ch. 13]. Potential actions the
Department could consider include injunctive actions to prevent
cultivation and distribution of marijuana and other associated violations
of the CSA; civil fines; criminal prosecution; and the forfeiture of any
property used to facilitate a violation of the CSA."
Cannabis Action Coal. v. City of Kent, 180 Wash. App. 455, 464, 322 P.3d 1246 (first
alteration in original) (footnote omitted), review granted, 182 Wash. 2d 1022, 336 P.3d
1165 (2014 ). Following receipt of this letter, the governor vetoed 36 sections that
would have established and monitored a state licensed medical marijuana registry,
including the legislature's statement of intent in section 101. See LAWS OF 2011, ch.
181, at 1376 (governor's veto message). No registry currently exists. However, the
governor did not veto sections 401, 402, or 406, reasoning that the latter sections
were still meaningful because they "establish affirmative defenses" and "govern those
who have not registered." /d. Sections 402 and 406 (codified as RCW 69.51A.043(1)
and (2), respectively) establish affirmative defenses for patients who have not
registered. Section 401 (codified as RCW 69.51A.040) identifies the requirements for
qualifying patients to receive heightened protections, beyond the ability to establish
an affirmative defense. As enacted, RCW 69.51A.040 provides heightened protection
for qualifying patients and designated providers who, among other things, register with
the Department of Health.
Ill. Statutory Interpretation
RCW 69.51A.040, as passed, does not decriminalize the medical use of
marijuana. Instead, the plain language of the statute establishes a limited exception
to the general prohibition against marijuana that existed at the time that the search
warrant in this case issued. This interpretation is supported by the context in which
8
State v. Reis (William Michael), No. 90281-0
the statute appears, the statute's placement within the statutory scheme, and the
governor's veto message accompanying E2SSB 5073. See LAWS OF 2011, ch. 181, at
1374-76. The legislature may have intended to create heightened protections for
qualifying patients who registered. However, because registration is currently
impossible, the statute provides qualifying patients with only an affirmative defense
until the legislature is able to establish a registry. Therefore, we reject Reis's argument
and affirm the Court of Appeals.
A. Plain language of the statute
We begin with the plain language of the statute. As enacted, RCW 69.51A.040
reads in relevant part:
The medical use of cannabis in accordance with the terms and conditions
of this chapter does not constitute a crime and a qualifying patient or
designated provider in compliance with the terms and conditions of this
chapter may not be arrested, prosecuted, or subject to other criminal
sanctions or civil consequences ... if:
(2) The qualifying patient or designated provider presents his or her
proof of registration with the department of health, to any peace officer who
questions the patient or provider ... ;
(3) The qualifying patient or designated provider keeps a copy of his
or her proof of registration with the registry established in section 901 of
this act and the qualifying patient or designated provider's contact
information posted prominently next to any cannabis plants, cannabis
products, or useable cannabis located at his or her residence;
(6) The investigating peace officer has not observed evidence of
any of the circumstances identified in section 901 (4) of this act.
The language of this statute is clear and unambiguous: the medical use of
cannabis is not a crime if each of the terms and conditions is complied with by either
9
State v. Reis (William Michael), No. 90281-0
qualifying patients or designated providers. The terms and conditions are provided for
in RCW 69.51A.040, and the terms "qualifying patient" and "designated provider" are
defined. See RCW 69.51A.01 0. Because the terms are defined within the statute, we
need not look outside the statute to determine their meaning. State v. Smith, 117
Wash. 2d 263, 271, 814 P.2d 652 (1991) ('"Words are given the meaning provided by the
statute or, in the absence of specific definition, their ordinary meaning."' (quoting State
v. Standifer, 110 Wash. 2d 90, 92, 750 P.2d 258 (1988))). It follows that one who does
not satisfy the terms and conditions, or who is not a qualifying patient or a designated
provider, is not entitled to the enumerated protections in this statute.
B. Chapter 69.51A RCW creates an affirmative defense to the general
prohibition on marijuana
The context of the statute supports our plain language interpretation. We
interpret laws dealing with the same or similar issues by considering them together.
Bainbridge Island Police Guild v. City of Puyallup, 172 Wash. 2d 398, 423, 259 P.3d 190
(2011 ). This is particularly relevant when analyzing exceptions-we do not analyze
individual subsections in isolation from the other sections of the statute when doing
so would undermine the overall statutory purpose. In re Pers. Restraint of Adams, 178
Wash. 2d 417, 424, 309 P.3d 451 (2013).
The Controlled Substances Act makes it a crime to possess, manufacture, or
distribute marijuana in Washington. See RCW 69.50.401-.455. The medical use of
marijuana is an exception to this general prohibition, RCW 69.51A.020. The
protections available through this exception vary based on a qualifying patient's or
designated provider's adherence to the terms and conditions governing the exception.
RCW 69.51A.040. In this context, the amended MUCA clearly establishes a tiered
10
State v. Reis (William Michael), No. 90281-0
system of protections for compliant, qualifying users of medical marijuana: RCW
69.51A.040 and a series of affirmative defenses for qualifying patients failing the
requirements of RCW 69.51A.040. RCW 69.51A.043, .045, .047.
RCW 69.51A.040 decriminalizes cannabis used for medical purposes in
accordance with the statutory scheme. This statute affords the highest level of
protections for qualifying patients and designated providers who use cannabis "in
accordance with the terms and conditions of this chapter." RCW 69.51A.040. There
are six required "terms and conditions" contained within RCW 69.51A.040. Subsection
(1) places limits on the quantity of cannabis that a qualifying patient or designated
provider may possess. Subsections (2) and (3) require registration with the
Department of Health-now impossible in light of the governor's veto-and require
that the patient keep their registration within their home and present it to inquiring
investigating officers. Subsections (4 ), (5), and (6) require that the investigating officer
not possess evidence that the qualifying patient or designated provider is converting
marijuana for their own use or benefit, or otherwise violating distribution requirements
or registration requirements. If a qualifying patient or designated provider complies
with all of these requirements, including registration, the use of marijuana "does not
constitute a crime." /d.
RCW 69.51A.043 provides an affirmative defense for the medical use of
cannabis. The legislature made the distinction between section .040 and section .043
rest on whether the user was registered in the state registry. RCW 69.51A.040
(expressly requiring registration and display of registration); RCW 69.51A.043(2) ("A
qualifying patient or designated provider who is not registered with the registry ...
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State v. Reis (William Michael), No. 90281-0
may assert an affirmative defense to charges of violations of state law relating to
cannabis through proof at trial, by a preponderance of the evidence, that he or she
otherwise meets the requirements of RCW 69.51A.040.").
Reis argues that this language is ambiguous because "RCW 69.51A.040
decriminalizes the same activity which RCW 69.51A.043 affords an affirmative
defense." But nothing in the text of the statute enacted following the governor's veto
supports this interpretation. Even though there is no registry, we cannot simply read
that requirement out of the statute. See G-P Gypsum Corp. v. Dep't of Revenue, 169
Wash. 2d 304, 309, 237 P.3d 256 (201 0) ('"[s]tatutes must be interpreted and construed
so that all the language used is given effect, with no portion rendered meaningless or
superfluous"' (internal quotation marks omitted) (quoting State v. J.P, 149 Wash. 2d 444,
450, 69 P.3d 318 (2003))). By its language, RCW 69.51A.040 decriminalizes activities
for individuals who have, amongst other things, registered with the Department of
Health, while RCW 69.51A.043 provides an affirmative defense for those who have
not registered.
An affirmative defense admits the defendant committed a criminal act but
pleads an excuse for doing so. State v. Votava, 149 Wash. 2d 178, 187-88,66 P.3d 1050
(2003). Reis's reading would render RCW 69.51A.043 superfluous-there is no need
for an affirmative defense to provide an excuse for conduct that is not unlawful. See
State v. Kurtz, 178 Wash. 2d 466, 478, 309 P.3d 472 (2013) (explaining that an affirmative
defense is necessary only when one's conduct falls outside the specific conduct
protected under RCW 69.51A.040). Thus, Reis's argument turns the plain language
of the statute on its head: the affirmative defense provisions are essential protections
12
State v. Reis (William Michael), No. 90281-0
for qualifying patients and designated providers because no one can enjoy the
heightened protections of RCW 69.51A.040 in the absence of a registry.
C. Legislative Intent
For the reasons discussed above we hold that chapter 69.51A RCW provides
medical marijuana patients with only an affirmative defense. Reis responds to these
plain language arguments by asserting that RCW 69.51A.040 plainly reads, "[T]he
medical use of cannabis ... does not constitute a crime," citing to our opinion in Kurtz,
178 Wash. 2d at 478. He also argues that the codified legislative intent of RCW
69.51A.005 plainly articulates the purpose of the amendment and that our reading
should give effect to this purpose.
Kurtz addressed whether the 2011 amendments to MUCA abrogated the
common law medical necessity defense. The court, in holding that the amendments
did not abrogate the common law medical necessity defense, stated that "the
legislature amended the Act making qualifying marijuana use a legal use, not simply
an affirmative defense." /d. at 476 (emphasis added). Later in that paragraph, the court
repeated that "[t]he 2011 amendment leg~lizing qualifying marijuana use strongly
suggests that the Act was not intended to abrogate or supplant the common law
[medical] necessity defense." /d. (emphasis added). Rather than interpret the statute,
these statements mirror the language in RCW 69.51A040 that "the medical use of
cannabis in accordance with the terms and conditions of this chapter does not
constitute a crime." (Emphasis added.) Because registration is a requirement for
qualifying marijuana use under RCW 69.51A.040, Kurtz does not support Reis's
argument.
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State v. Reis (William Michael), No. 90281-0
Reis also argues that the legislature intended to decriminalize the medical use
of marijuana by giving patients heightened protections from searches and arrest. This
may be true; however, the legislative intent codified as RCW 69.51A.005 6 does not
trump the plain language of the statute to create an ambiguity. Declarations of intent
are not controlling; instead, they serve "only as an important guide in determining the
intended effect of the operative sections." Kilian v. Atkinson, 147 Wash. 2d 16, 23, 50
P.3d 638 (2002). This is true even when the codified intent speaks directly to the
enacted statute. Here, the governor's veto struck 36 of the 58 original sections; the
legislature's statement of intent speaks to a statute that was never enacted.
Though the legislature's initial intent in passing this statute was never realized,
Governor Gregoire articulated her intent for the surviving portions of the amendments
in her veto message. See LAWS OF 2011, ch. 181, at 1374-76 (governor's veto
message). Our "'fundamental objective in construing a statute is to ascertain and carry
out the legislature's intent,"' Lake v. Woodcreek Homeowner's Ass'n, 169 Wash. 2d 516,
526, 243 P.3d 1283 (201 0) (quoting Arborwood Idaho, LLC v. City of Kennewick, 151
6 RCW 69.51A.005(2) reads as follows:
Therefore, the legislature intends that:
(a) Qualifying patients with terminal or debilitating medical conditions who,
in the judgment of their health care professionals, may benefit from the medical
use of cannabis, shall not be arrested, prosecuted, or subject to other criminal
sanctions or civil consequences under state law based solely on their medical
use of cannabis, notwithstanding any other provision of law;
(b) Persons who act as designated providers to such patients shall also not
be arrested, prosecuted, or subject to other criminal sanctions or civil
consequences under state law, notwithstanding any other provision of law,
based solely on their assisting with the medical use of cannabis ....
14
State v. Reis (William Michael), No. 90281-0
Wn.2d 359, 367, 89 P.3d 217 (2004)), and "[i]n approving or disapproving legislation,
the Governor acts in a legislative capacity and as part of the legislative branch of
government." Hallin v. Trent, 94 Wash. 2d 671, 677, 619 P.2d 357 (1980) (quoting Shelton
Hotel Co. v. Bates, 4 Wash. 2d 498, 506, 104 P.2d 478 (1940) ("When referring to what
the legislature intended, we must not forget that the governor ... [is] acting in a
legislative capacity, and we cannot therefore consider the intent of the house and the
senate apart from the intent of the governor.")). Here, the governor's veto message is
the only statement of legislative intent speaking to the removal of the registry from the
bill as enacted. The veto message conveys the governor's recognition that the bill will
not provide heightened arrest and seizure protection and that qualifying patients and
designated providers will instead be able to assert an affirmative defense. LAWS OF
2011, ch. 181, at 1374-76 (governor's veto message).
Governor Gregoire explained that she decided to veto the registry because she
was "open to legislation that establishes a secure and confidential registration system
to provide arrest and seizure protections under state law to qualifying patients .... "
/d. at 1376. This strongly suggests that the governor recognized that this bill would
not provide those protections. She then announced that she would veto sections 901
and 902, stating that "[w]ithout a registry, these sections are not meaningful." /d.
However, the governor declined to veto sections 402 and 406; these sections provide
an affirmative defense for qualifying patients and designated providers who are not
registered. /d. The governor explicitly recognized that these sections remain
meaningful without a registry "[b]ecause these sections govern those who have not
registered." /d. Thus, the legislative intent does not support Reis's argument.
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State v. Reis (William Michael), No. 90281-0
Applying each of these well-established principles of statutory interpretation
leads to the conclusion that RCW 69.51A.040 does not decriminalize the medical use
of cannabis. It is currently impossible to comply with each of the requirements in RCW
69.51A.040 because a registry does not currently exist. Following the governor's veto,
chapter 69.51A RCW does not provide for the heightened search and arrest
protections that the legislature may have intended. See RCW 69.51A.005(2); E2SSB
5073, § 101 (vetoed). Instead, qualifying patients and designated providers are
provided with an affirmative defense and RCW 69.51A.040 establishes the elements
for raising that defense. The possibility remains that the legislature may yet amend
the statute to create a registry; this does not suggest that the current statute has
multiple reasonable interpretations. It also does not suggest that the legislature
intended to decriminalize marijuana without the benefits of a registry.
D. We may not modify the plain and unambiguous statutory language
Despite Reis's arguments, we do not have the authority to rewrite the statute to
provide the enhanced protections that the legislature may have intended had it
anticipated the governor's veto. The court is not permitted to "speculate as to what the
legislature intended, had it foreseen the veto." Shelton Hotel Co. v. Bates, 4 Wash. 2d
498, 509, 104 P.2d 478 (1940). Instead, we are left with the statute '"to be considered
now just as it would have been if the vetoed provisions had never been written into
the bill at any stage of the proceedings."' /d. at 506 (quoting State ex ref. Stiner v.
Yelle, 174 Wash. 402, 408, 25 P.2d 91 (1933)). Indeed, this situation is analogous to
a legislative omission, a situation in which we have long recognized that
we do not have the power to read into a statute that which we may
believe the legislature has omitted, be it an intentional or an inadvertent
16
State v. Reis (William Michael), No. 90281-0
omission .... [l]t would be a clear judicial usurpation of legislative power
for us to correct that legislative oversight.
State v. Martin, 94 Wash. 2d 1, 8, 614 P.2d 164 (1980) (citations omitted). It is not this
court's job to remove words from statutes or to create judicial fixes, even if we think
the legislature would approve. Statutes that frustrate the purpose of others, though
perhaps unintentionally, are "purely a legislative problem." State ex ref. Hagan v.
Chinook Hotel, Inc., 65 Wash. 2d 573, 578, 399 P.2d 8 (1965). Until the legislature
amends the statute or creates a registry, the MUCA provides qualifying patients with
only an affirmative defense.
IV. The Veto Does Not Undermine Our Analysis of the Enacted Statute
This statutory analysis has interpreted the relative statutes as if the legislature
had written the statutes as they were enacted following the governor's veto. Nothing
about the governor's veto changes the way we interpret these statutes.
The governor's veto power, broadly construed since the territorial days, has
evolved over time. See generally Wash. State Legislature v. Lowry, 131 Wash. 2d 309,
315-16, 931 P.2d 885 (1997). Initially, the governor's veto extended to full bills,
sections of bills, and items in bills. WASH. CONST. 1889, art. Ill, § 12. This power was
limited by the 62nd amendment in 1974. Lowry, 131 Wash. 2d at 316. Today, the
Washington Constitution confers on the governor general veto authority over
legislation and a different "!.ine item" veto power over "appropriation items":
If any bill presented to the governor contain several sections or
appropriation items, he may object to one or more sections or
appropriation items ... Provided, That he may not object to less than an
entire section, except that if the section contain one or more
appropriation items he may object to any such appropriation item or
items.
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State v. Reis (William Michael), No. 90281-0
WASH. CONST. art. Ill,§ 12 (amend. 62). Thus, under the general veto power exercised
in this case, the governor may veto a whole bill or a section of a bill but cannot veto
individual items or lines in bills. /d.
Governor Gregoire lawfully vetoed 36 of the 58 sections of chapter 181. LAWS
OF 2011, ch. 181, at 1376 (governor's veto message). She vetoed section 901 which
would have established and monitored a state licensed medical marijuana registry,
but did not veto references to section 901, in the amended MUCA. As a result of the
governor's choice not to veto references to the registry, these references remain in
the bill, codified as chapter 69.51A RCW. Therefore, we must analyze the effect that
Governor Gregoire's veto has on the remaining references to the vetoed sections.
Specifically, we must address the references to a state registry.
The governor's veto completely removes the vetoed material from the
legislation. Hallin, 94 Wash. 2d at 677. The act is "'to be considered now just as it would
have been if the vetoed provisions had never been written into the bill at any stage of
the proceedings."' Shelton Hotel Co., 4 Wash. 2d at 506 (quoting State ex ref. Stiner, 174
Wash. at 408). Reis relies on these cases, as well as Washington Federation of State
Employees v. State, 101 Wash. 2d 536, 545, 682 P.2d 869 (1984 ), to argue that we must
disregard not only the vetoed provisions themselves but also all remaining references
to the vetoed sections. But this case differs from Hallin, Shelton Hotel Co., and
Washington Federation in one major way: in those cases the disregarded language
was actually vetoed; in this case, the references to the registry were never vetoed
from RCW 69.51A.040. Since the references to section 901 were not vetoed from
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State v. Reis (William Michael), No. 90281-0
RCW 69.51A.040, we cannot disregard them. Accordingly, we reject Reis's argument
that the medicinal use of cannabis is no longer a crime.
Contrary to Reis's assertions, Washington Federation does not require this
court to strike references to vetoed legislation. Washington Federation concerned a
challenge to Governor Spellman's veto of Substitute House Bill 1226, 47th Leg., 1st
Ex. Sess. ch. 53, at 511 (Wash. 1982). 101 Wash. 2d at 538. The veto explicitly removed
section 30 and all references to that section. /d. The petitioner in Washington
Federation argued that the removal of the related items was a line item veto in violation
of article Ill, section 12 of the Washington State Constitution. !d. In rejecting that
argument, this court held:
The veto of Governor Spellman was of an entire section and was valid.
The deleted references to section 30 were incidentally vetoed purely as
a ministerial act. If not deleted, the Code Reviser, pursuant to RCW
1.08.015(2)(m), would have taken out such "manifestly obsolete"
references.
/d. at 544. Thus, Washington Federation permitted the incidental veto by the executive
branch of individual line items, despite the general prohibitions of Washington
Constitution article Ill, section 12 (amend. 62). /d. It does not address whether a court
must evaluate and disregard individual items of legislation that reference a vetoed
section when those items survived the governor's veto. We decline to read these
requirements out of the statute when they were not actually vetoed by the governor.
Governor Gregoire's veto message carefully and deliberately distinguishes
between references that "are not meaningful" and those that "remain meaningful"
following her veto of the registry. But even if we believed that the governor overlooked
these particular references, we do not have the power to edit the language of the
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State v. Reis (William Michael), No. 90281-0
enacted statute. In exercising the veto power, the governor is acting in a legislative
capacity. Shelton Hotel Co., 4 Wash. 2d at 506. This court does not have the authority
to read language out of a statute, even when we believe that the statute contains
errors or inadvertent omissions. Cf. Martin, 94 Wash. 2d at 8 (court does not have the
power to "read into a statute that which we may believe the legislature has omitted,
be it an intentional or an inadvertent omission"). The governor's veto did not eliminate
the statutory language requiring registration in RCW 69.51A.040, and we cannot
eliminate that language ourselves. We instead must limit our interpretation to the
enacted statute; we therefore regard "the excised material ... as though it had never
been written by the legislature." Hallin, 94 Wash. 2d at 678.
V. Lawfulness of the Search Warrant
We hold that the search was valid because the plain language of the statute
and the legislative intent as expressed in the governor's veto message lead to the
conclusion that a user or possessor of cannabis may raise only an affirmative defense
under MUCA. Reis concedes that the possibility of proving the affirmative defense
does not undermine probable cause for a search warrant. State v. Fry, 168 Wash. 2d 1,
6, 228 P.3d 1 (201 0).
CONCLUSION
We affirm the Court of Appeals and remand for trial consistent with this opinion.
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State v. Reis (William Michael), No. 90281-0
(/
WE CONCUR.
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