Washington State Supreme Court decision permits 'medical necessity' defense

Washington State Supreme Court decision permits 'medical necessity' defense

Published on 9/23/13

A divided Washington state Supreme Court has agreed a necessity defense should have been allowed in a marijuana manufacturing case against an Olympia-area man fined $4,000 three years ago for possessing 42 marijuana plants and other packaged marijuana. The narrow 5-to-4 majority ruling sends the case back to Thurston County Superior Court for further action.

The case involves William Kurtz, who is wheelchair bound due to a medical condition that causes him chronic pain. He was fined but not sent to jail by Judge Carol Murphy in October 2010, according to a report in The Olympian at the time.

The Supreme Court’s majority and dissenting opinions handed down Thursday morning are here.

The majority decision was authored by Chief Justice Barbara Madsen, joined by Justices Charles Johnson, Debra Stephens and Steven Gonzalez and Justice Pro Tem Tom Chambers. Madsen contended the state’s Medical Use of Marijuana Act “does not abrogate the common law” allowing a medical necessity defense.

But the dissent - authored 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.”

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

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