Washington: State Supreme Court Upholds Medical Necessity Defense For Growing Marijuana


By Steve Elliott
Hemp News

In a landmark case with far-reaching implications, a divided Washington state Supreme Court on Thursday upheld a medical necessity defense in a marijuana cultivation case against a man who was fined $4,000 three years ago for growing 42 plants. According to the decision, a prior medical marijuana authorization is not necessary in order to claim a medical necessity defense for cannabis.

The narrow 5-4 ruling sends the case of William Kurtz back to Thurston County Superior Court for further action, reports Brad Shannon at The Olympian. Kurtz -- who uses a wheelchair due to a medical condition that causes him chronic pain -- was fined but not sent to jail by Judge Carol Murphy in October 2010, reported Jeremy Pawloski of The Olympian at that time.

The majority decision was written by Chief Justice Barbara Madsen, joined by Justices Charles Johnson, Debra Stephens and Steven Gonzalez and Justice Pro Tem Tom Chambers.

Madsen opined that Washington's Medical Use of Marijuana Act, approved by voters in 1998, "does not abrogate the common law" allowing a medical necessity defense. The ruling means that those who are arrested for cannabis possession or growing can now claim a medical necessity defense even if they don't have a prior medical marijuana authorization from a healthcare professional.

The dissent, written by Justice Susan Owens, said "the common law defense of necessity is predicated on a lack of legal alternatives. Washington voters have provided a comprehensive statutory scheme for the use of medical marijuana, enacted by initiative in 1998. Because individuals in this state have a legal way of using medical marijuana, the previously articulated common law defense of medical necessity for marijuana use is no longer appropriate." (Fortunately, that was the minority opinion.)

Owens was joined in her dissent by Justices Mary Fairhurst, James Johnson and Charles Wiggins.

(Photo: Cannabis Fantastic)