State of Arizona v. Liwski

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

THE STATE OF ARIZONA,
Petitioner,

v.

HON. DANELLE LIWSKI, JUDGE OF THE SUPERIOR COURT OF THE
STATE OF ARIZONA, IN AND FOR THE COUNTY OF PIMA,
Respondent,

and

RYAN MITCHELL GILLIE,
Real Party in Interest.

No. 2 CA-SA 2015-0044
Filed August 28, 2015

Special Action Proceeding
Pima County Cause No. CR20133035001

JURISDICTION ACCEPTED; RELIEF GRANTED

COUNSEL

Barbara LaWall, Pima County Attorney
By Nicolette Kneup, Deputy County Attorney, Tucson
Counsel for Petitioner

Steven R. Sonenberg, Pima County Public Defender
By David J. Euchner and Sarah L. Mayhew, Assistant Public
Defenders, Tucson
Counsel for Real Party in Interest
 STATE v. LIWSKI
Opinion of the Court

OPINION

Presiding Judge Vásquez authored the opinion of the Court, in
which Judge Howard and Judge Kelly1 concurred.

V Á S Q U E Z, Presiding Judge:

¶1 The State of Arizona seeks special-action review of the
respondent judge’s order denying the state’s motion to preclude
defendant Ryan Gillie from presenting a defense based on the
Arizona Medical Marijuana Act (AMMA), A.R.S. §§ 36-2801 through
36-2819. We accept jurisdiction, and we grant relief because the
respondent incorrectly concluded Gillie may present a defense
under the AMMA.

¶2 The relevant facts are not in dispute. Gillie was charged
with possession of marijuana for sale, production of marijuana, and
possession of drug paraphernalia. He was arrested while carrying
3.5 ounces of marijuana, which led to the discovery of growing
equipment and numerous marijuana plants at his home. Gillie is a
registered designated caregiver under the AMMA for one qualifying
patient and is authorized to cultivate marijuana for that patient. See
§ 36-2801(5). The state sought to preclude him from raising a
defense based on the AMMA. The respondent judge held an
evidentiary hearing, at which Gillie presented evidence that he had
intended to deliver some of the marijuana he was carrying to
another patient for whom he was not the designated caregiver.

¶3 The state argued that Gillie was not entitled to
protection under the AMMA because he had been carrying more
than the permitted 2.5 ounces of marijuana per qualified patient
pursuant to §§ 36-2801(1)(b)(i) and 36-2811(B)(2). Gillie responded

1The Hon. Virginia C. Kelly, a retired judge of this court, is
called back to active duty to serve on this case pursuant to orders of
this court and the supreme court.

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Opinion of the Court

that he was permitted to carry more than 2.5 ounces pursuant to
§ 36-2811(B)(3) because he had intended to deliver the excess
marijuana to another cardholder. The respondent judge, observing
“the statute is not clear,” concluded Gillie was permitted to provide
“other marijuana,” in excess of the 2.5-ounce per-patient limit, to
cardholders. She thus denied the state’s motion to preclude, stating
Gillie was permitted to “present a medical marijuana defense” at
trial.

¶4 In its petition for special action, the state argues the
respondent judge erred by concluding Gillie could possess
marijuana in excess of 2.5 ounces and raise a medical marijuana
defense. We accept special-action jurisdiction because the state has
no remedy by appeal, see A.R.S. § 13-4032; Ariz. R. P. Spec.
Actions 1(a), and because this “case presents a novel question of
statewide importance that is also a question of law,” Fuller v. Olson, 233 Ariz. 468, ¶ 5, 314 P.3d 814, 817 (App. 2013). “Special action
relief is appropriate if the respondent judge has abused her
discretion by committing an error of law or proceeding in excess of
her legal authority.” State v. Bernini, 230 Ariz. 223, ¶ 6, 282 P.3d 424,
426 (App. 2012).

¶5 “We review questions of statutory interpretation de
novo.” Reed-Kaliher v. Hoggatt, 237 Ariz. 119, ¶ 6, 347 P.3d 136, 139
(2015). “‘Our primary objective in construing statutes adopted by
initiative is to give effect to the intent of the electorate.’” Id., quoting
State v. Gomez, 212 Ariz. 55, ¶ 11, 127 P.3d 873, 875 (2006). The best
indicator of that intent is the statute’s plain language, and, if that
language is clear and unambiguous, we apply it as written. State v.
Matlock, 237 Ariz. 331, ¶ 10, 350 P.3d 835, 838 (App. 2015).

¶6 Marijuana possession and use are illegal in Arizona, but
the AMMA “permits those who meet statutory conditions to use
medical marijuana.” Reed-Kaliher, 237 Ariz. 119, ¶ 7, 347 P.3d at 139.
Pursuant to the AMMA, a designated caregiver may assist up to five
patients with the medical use of marijuana and may receive
reimbursement for costs incurred in providing such assistance “if
the registered designated caregiver is connected to the registered
qualifying patient through the [Arizona Department of Health

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Opinion of the Court

Services] registration process.” § 36-2801(4), (5). A designated
caregiver is a “cardholder” as defined by the AMMA. § 36-2801(2).

¶7 The AMMA “provides two different statutory
protections for cardholders” under § 36-2811. State v. Fields, 232
Ariz. 265, ¶ 13, 304 P.3d 1088, 1092 (App. 2013). First, pursuant to
subsection (A), there is a rebuttable presumption that possession of
marijuana is for medical use if a cardholder is in possession of a
valid card and does not possess more than the allowable amount of
marijuana. Id. Second, pursuant to subsection (B), the statute
provides immunity from prosecution if certain requirements are
met. See id. ¶ 14. Subsection (B)(2) provides immunity for a
“registered designated caregiver assisting a registered qualifying
patient to whom he is connected through the department’s
registration process with the registered qualifying patient’s medical
use of marijuana pursuant to this chapter if the registered
designated caregiver does not possess more than the allowable
amount of marijuana.” Subsection (B)(3) provides immunity for
cardholders

[f]or offering or providing marijuana to a
registered qualifying patient or a registered
designated caregiver for the registered
qualifying patient’s medical use or to a
registered nonprofit medical marijuana
dispensary if nothing of value is
transferred in return and the person giving
the marijuana does not knowingly cause
the recipient to possess more than the
allowable amount of marijuana.

¶8 The protections provided by the AMMA are not
available, however, if the cardholder fails to comply with any of the
above conditions, thus subjecting the cardholder to prosecution for
all marijuana use or possession. Fields, 232 Ariz. 265, ¶ 14, 304 P.3d
at 1092. The cardholder has the burden of demonstrating, “by a
preponderance of the evidence, that his or her actions fall within the
range of immune action.” Id. ¶ 15. Whether immunity applies is a
question of law. Id. But if there are disputed facts related to

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Opinion of the Court

immunity, such facts must be resolved by the jury before the trial
court determines if immunity has been established. Id.

¶9 The state argues that, because Gillie was the designated
caregiver for only one qualifying patient, he was permitted to
possess only 2.5 ounces of marijuana. The state is correct that the
allowable amount of marijuana for a designated caregiver is 2.5
ounces for each qualifying patient connected to that caregiver. § 36-
2801(1)(b)(i). Thus, because he possessed 3.5 ounces of marijuana,
Gillie is not entitled to immunity pursuant to § 36-2811(B)(2).

¶10 The respondent judge appeared to adopt Gillie’s
argument that § 36-2811(B)(3) permitted him to exceed the 2.5-ounce
limit in order to dispose of excess marijuana resulting from
cultivation of marijuana plants. But nothing in the plain text of
subsection (B)(3) supports that interpretation. That subsection
provides immunity for offering or providing marijuana to another
person or entity entitled to receive it, not for possession. Immunity
for use of or assistance with medical marijuana by cardholders is
found in subsections (B)(1) and (B)(2), and those provisions include
unambiguous possession limits. Subsection (B)(3) does not create a
separate allowance for possession, but rather creates a means by
which a cardholder can ensure they do not possess more than the
allowable amount of marijuana. Gillie’s interpretation would
conflict with the clear limits on immunity for marijuana possession,
a result we are obligated to avoid. Chaparral Dev. v. RMED Int’l, Inc.,
170 Ariz. 309, 313, 823 P.2d 1317, 1321 (App. 1991) (courts must
endeavor to construe statutes to avoid conflict and give effect to
each provision).

¶11 We reject Gillie’s additional argument that a liberal
reading of the AMMA would entitle him to raise a defense under its
immunity provisions. Even assuming Gillie is correct that a broad
reading of the AMMA is appropriate, in the absence of ambiguity,
we must apply the AMMA as written. See Matlock, 237 Ariz. 331,
¶ 10, 350 P.3d at 838. We will not expand its provisions beyond their
plain meaning. For the same reason, we reject Gillie’s argument that
we should apply the rule of lenity. See State v. Fell, 203 Ariz. 186,
¶ 10, 52 P.2d 218, 221 (App. 2002) (rule of lenity not applicable to
unambiguous statute).

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Opinion of the Court

¶12 Gillie further contends, however, that we must interpret
§ 36-2811(B)(3) to allow him to possess marijuana in excess of 2.5
ounces to avoid an “absurd result.” See State v. Estrada, 201 Ariz.
247, ¶¶ 16-17, 34 P.3d 356, 360 (2001). “An absurd result is one ‘so
irrational, unnatural, or inconvenient that it cannot be supposed to
have been within the intention of persons with ordinary intelligence
and discretion.’” Evans Withycomb, Inc. v. W. Innovations Inc., 215
Ariz. 237, ¶ 12, 159 P.3d 547, 550 (App. 2006), quoting Estrada, 201
Ariz. 247, ¶ 17, 34 P.3d at 360.

¶13 The first purported absurdity that Gillie identifies is
that, by concluding the limits of § 36-2811(B)(2) apply to him, we
would be adopting a rule “that a caregiver/cultivator who possesses
even a minute amount of marijuana over 2.5 ounces is barred
completely from defending himself in a criminal prosecution.” But
Gillie has not identified what is absurd about requiring cardholders
to comply with the AMMA’s unambiguous possession limits. And,
in any event, we are not presented with a case in which a cardholder
possessed “a minute amount” of excess marijuana. Instead, Gillie
possessed forty percent more marijuana than permitted by the
AMMA.

¶14 Gillie next argues that applying the possession limit as
written would be an absurd result because it would expose
cardholders to police harassment. He claims enforcing the
possession limits would permit law enforcement officers “to detain
licensees purportedly to weigh the amount of marijuana in a
patient’s or caregiver’s possession” and arrest them “for the slightest
discrepancy.” But Gillie has not explained how requiring
compliance with the possession limits would grant law enforcement
authority to detain cardholders to investigate their compliance
absent reasonable suspicion. See State v. Evans, 237 Ariz. 231, ¶ 7,
349 P.3d 205, 208 (2015) (police must have reasonable suspicion of
criminal activity to detain person).

¶15 Gillie also complains that the possession limits render it
difficult for cultivators to remain in compliance with the AMMA
because of the uncertainties of marijuana cultivation. But that is not
the case before us. And, although we can appreciate that a
cultivator might have to be cautious to ensure compliance with the

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Opinion of the Court

AMMA, Gillie has identified no evidence suggesting that requiring
compliance is “‘so irrational, unnatural, or inconvenient that it
cannot be supposed to have been within the intention of persons
with ordinary intelligence and discretion.’” Evans Withycomb, Inc.,
215 Ariz. 237, ¶ 12, 159 P.3d at 550, quoting Estrada, 201 Ariz. 247,
¶ 17, 34 P.3d at 360.Moreover, as we noted above, § 36-2811(B)(3)
provides a mechanism for a cultivator to avoid exceeding the
possession limits by transferring marijuana. What it does not do,
however, is permit a cultivator to exceed those limits.

¶16 Finally, Gillie suggests that enforcing the possession
limitation is absurd when considered in light of the transfer
provision because it means a caregiver could transfer only marijuana
allocated to a patient, instead of having the authority to transfer
excess marijuana. But this argument ignores that a patient may not
need his or her entire 2.5-ounce allocation and may opt to transfer
the remainder. Thus, for these reasons, we reject Gillie’s arguments
that requiring compliance with the AMMA’s possession limit leads
to an absurd result. Indeed, the only proposed interpretation that
reasonably could be characterized as absurd is the one proposed by
Gillie—that a cultivator could possess marijuana far in excess of the
allowable limit if he or she is able to conjure a sufficient list of
eligible recipients.

¶17 Gillie makes several arguments grounded primarily in
§ 36-2812. 2 But that statute was repealed in 2011 and has no
application to this case. 2010 Prop. 203 (an Initiative Measure), § 5,
eff. Apr. 14, 2011. Accordingly, we have disregarded those
arguments. See Polanco v. Indus. Comm’n, 214 Ariz. 489, n.2, 154 P.3d
391, 393 n.2 (App. 2007) (failure to develop argument and cite
relevant authority constitutes waiver).

2Section 36-2812 was an “interim provision” under the AMMA
creating an affirmative defense for marijuana offenses. State v. Sisco, 717 Ariz. Adv. Rep. 6, ¶ 51 (Ct. App. July 20, 2015). “That provision
expired when the department of health services began issuing
registry identification cards on April 14, 2011.” Id.

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Opinion of the Court

¶18 Gillie additionally contends that we must view the three
provisions of § 36-2811(B) separately and that he is entitled to apply
the immunity in (B)(2) to 2.5 ounces of the marijuana in his
possession and the immunity in (B)(3) to the excess marijuana he
claims he intended to transfer. But this argument is grounded in the
incorrect proposition that (B)(3) permits the possession of marijuana
in excess of the allowable limit. Instead, as we have explained, (B)(3)
provides immunity for the transfer of marijuana, while immunity for
possession is provided by (B)(2).

¶19 Gillie also argues he is entitled to present a defense
under the AMMA under what he calls “the doctrine of fleeting
possession.” Even if such a doctrine exists under Arizona law, this
issue was not presented to the respondent judge in response to the
state’s motion to preclude, and, accordingly, we do not address it.
See State v. Takacs, 169 Ariz. 392, 399, 819 P.2d 978, 985 (App. 1991).

¶20 We accept special-action jurisdiction, and, because the
respondent judge erred as a matter of law in concluding Gillie was
entitled to present a defense under the AMMA, we grant relief. The
respondent judge’s order denying the state’s motion to preclude is
vacated.

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