William Kurtz challenges the Court of Appeals decision affirming his conviction for possession and manufacturing of marijuana. He argues that the trial court erred in denying his request to raise a common law medical necessity defense. We hold that medical necessity remains an available defense to marijuana prosecution and that the Washington State Medical Use of Marijuana Act (the Act), chapter 69.51A RCW, does not abrogate the common law. We reverse and remand for further proceedings.
In 2010, police executed a search warrant on petitioner William Kurtz's home and found marijuana and marijuana plants. The State charged Kurtz with manufacturing and possession of marijuana. At trial, Kurtz attempted to present medical authorizations in support of a common law medical necessity defense and a statutory medical marijuana defense. The State moved in limine to prevent these defenses, contending that neither was available to him.
After reviewing the case law, the trial court refused to allow Kurtz to raise either defense. The jury found Kurtz guilty and he appealed. The Court of Appeals affirmed the ruling as to the defenses but remanded on a separate issue relating to an improperly calculated offender score. Kurtz then petitioned this court for review, arguing that the common law medical necessity defense for marijuana continues to be an available defense, under case law and after the enactment of the Act.
Kurtz contends the trial court erred by not allowing him to present a common law medical necessity defense for his marijuana use. Specifically, he argues that the necessity defense was not abolished by this State's jurisprudence, nor was the defense superseded by the Act. The trial court's determination is a question of law which we review de novo. State v. Fry, 168 Wn.2d 1, 11, 228 P.3d 1 (2010).
The common law medical necessity defense for marijuana was first articulated in Stale v. Diana, 24 Wn.App. 908, 916, 604 P.2d 1312 (1979), by Division Three of the Court of Appeals. In Diana, the defendant argued a defense of medical necessity when he was charged with possession of marijuana. Following a discussion of the common law necessity defense, the court recognized a medical necessity defense could exist as a defense to marijuana possession in very limited circumstances, relying in part on the legislature's passage of the "Controlled Substances Therapeutic Research Act, " Laws of 1979, 1st Ex. Sess., ch. 176. Diana, 24 Wn.App. at 915-16. The court remanded for the trial court to determine whether the evidence presented supported the defense. Id. at 916. Specifically, the court instructed that medical necessity would exist in that case if "(1) the defendant reasonably believed his use of marijuana was necessary to minimize the effects of multiple sclerosis; (2) the benefits derived from its use are greater than the harm sought to be prevented by the controlled substances law and (3) no drug is as effective in minimizing the effects of the disease." Id. This medical necessity defense was subsequently recognized by Division One and Division Two. See State v. Pittman, 88 Wn.App. 188, 196, 943 P.2d 713 (1997) (discussing Diana and determining that the absence of a legal alternative that is as effective as marijuana is an implicit element of the necessity defense); State v. Cole, 74 Wn.App. 571, 578, 580, 874 P.2d 878 (adopting the reasoning of Diana and concluding the trial court usurped the jury's role in how it analyzed evidence of a potential medical necessity defense), review denied, 125 Wn.2d 1012, 889 P.2d 499 (1994).
The Court of Appeals subsequently called the necessity defense into question in Stale v. Williams, 93 Wn.App. 340, 347, 968 P.2d 26 (1998), review denied, 138 Wn.2d 1002, 984 P.2d 1034 (1999). The Williams court determined that an accepted medical use was an implicit element of the medical necessity defense, that the legislature was tasked with this determination, and that it had determined there was no accepted medical use for marijuana when it classified marijuana as a schedule I substance. Id. at 346-47 (citing Seeley v. State, 132 Wn.2d 776, 940 P.2d 604 (1997) (holding that the statute designating marijuana as a schedule I controlled substance does not violate the Washington Constitution)). Thus, Williams concluded there could be no common law medical necessity defense for schedule I substances, including marijuana, and interpreted Seeley as overruling Diana and Cole by implication. Id. at 347.
One month before the Williams opinion was published, the people passed Initiative 692, which was later codified in chapter 69.51 A RCW as the Act, The Act declared that the medical use of marijuana by qualifying patients is an affirmative defense to possession of marijuana. Former RCW 69.51A.040 (1999). The Act also stated that "[t]he people of Washington state find that some patients with terminal or debilitating illnesses, under their physician's care, may benefit from the medical use of marijuana." Former RCW 69.51 A.005 (1999). Williams cited Initiative 692 in a footnote, without analyzing what effect, if any, this initiative might have on its view that inclusion of marijuana as a schedule I controlled substance reflected a legislative determination that marijuana had no accepted medical use. Williams, 93 Wn.App. at 347 n. 1.
We first address whether the Court of Appeals in Williams correctly concluded that Seeley implicitly abolished the common law medical necessity defense. In Seeley, we considered whether the legislature's classification of marijuana as a schedule I substance under the Uniform Controlled Substances Act (UCSA), chapter 69.50 RCW, violated the Washington Constitution. Seeley, 132 Wn.2d at 786. Although the UCSA authorizes the board of pharmacy to schedule or reschedule substances considering, among other factors, the effect of the substance under former RCW 69.50.201 (1998), the legislature made the initial classification of marijuana as a schedule I substance,  Seeley, 132 Wn.2d at 784. With that in mind, we determined that there was substantial evidence to support the legislature's action. Id. at 813. While acknowledging the existence of a medical necessity defense, we did not comment on its validity or overrule Diana. Id . at 798. Rather, we simply stated, "The recognition of a potential medical necessity defense for criminal liability of marijuana possession is not relevant in this equal protection analysis." Id. Thus, we did not discuss the viability of the common law medical necessity defense as applied to marijuana.
In rejecting the medical necessity defense for marijuana, the Williams court stated that Seeley "makes it clear that the decision of whether there is an accepted medical use for particular dugs has been vested in the Legislature by the Washington Constitution." Williams, 93 Wn.App. at 347. This in incorrect. In fact, we stated that "the determination of whether new evidence regarding marijuana's potential medical use should result in the reclassification of marijuana is a matter for legislative or administrative, not judicial, judgment." Seeley, 132 Wn.2d at 805-06 (emphasis added). Nothing in Seeley suggests that by classifying marijuana as a schedule I controlled substance, the legislature also made a finding that marijuana has no accepted medical benefit for purposes of the common law medical necessity defense. Cf. Slate v. Hanson, 138 Wn.App. 322, 330-31, 157 P.3d 438 (2007) (determining that the Act only provided an affirmative defense to a drug crime and was not inconsistent with the scheduling statute). Indeed, the legislature defers to the state board of pharmacy for future additions, deletions, and rescheduling of substances which strongly suggests that the question of medical efficacy is subject to change. Former RCW 69.50.201(a). To conclude that a determination of medical use for scheduling purposes constitutes a legislative value determination of a substance for purposes of a necessity defense would yield the anomalous result that the necessity defense could be abrogated and reinstated whenever the board of pharmacy chooses to reclassify a controlled substance. We reject the contention that by scheduling a drug the legislature has also decided the efficacy of that substance for purposes of a medical necessity defense.
Our conclusion is bolstered by the passage of chapter 69.51 A RCW, which evidences the legislature's belief that despite its classification of marijuana as a schedule I controlled substance there may be a beneficial medical use for marijuana. RCW 69.51A.005(l)(a) states, "The legislature finds that. . . [t]here is medical evidence that some patients with terminal or debilitating medical conditions may, under their health professional's care, benefit from the medical use of cannabis."Accordingly, we agree with Kurtz that neither the legislature's classification of marijuana as a schedule I substance nor our decision in Seeley regarding legislative classification of marijuana abrogates the medical necessity defense.
We now turn to the question of whether the Act supersedes the common law medical necessity defense for marijuana. In general, Washington is governed by common law to the extent it is not inconsistent with constitutional, federal, or state law. Potter v. Wash. State Patrol, 165 Wn.2d 67, 76, 196 P.3d 691 (2008) "However, we are hesitant to recognize an abrogation or derogation from the common law absent clear evidence of the legislature's intent to deviate from the common law." Id. at 16-11. When "the provisions of a later statute are so inconsistent with and repugnant to the prior common law that both cannot simultaneously be in force, the statute will be deemed to abrogate the common ...