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Washington v. Kurtz

    Brief Fact Summary.

    William Kurtz was charged and convicted with the manufacture and possession of marijuana. Kurtz appealed the conviction on the grounds that the trial court did not allow him to assert a medical necessity defense.

    Synopsis of Rule of Law.

    Absent clear legislative intent to abrogate a common law defense, the common law defense will not become null and void.

    Facts.

    Police officers executed a search warrant in William Kurtz’s residence. The officers found marijuana plants and marijuana. The State charged Kurtz with manufacturing and possession of marijuana. The jury found Kurtz guilty of the crimes charged, and he appealed on the grounds that the trial court did not allow him to assert the common law defense of medical necessity.

    Issue.

    Whether the passage of the Act in 1988 or subsequent legislative amendments had abrogated the common law necessity defense.

    Held.

    No, the passage of the Act in 1988 or subsequent legislative amendments did not abrogate the common law necessity defense.

    Dissent.

    The medical necessity common law defense is established on the lack of any legal alternative. Here, the Act of 1988 is the legal alternative. A statute abrogates a common law defense when the statute creates such an inconsistency between the two statutes in which both laws cannot be simultaneously enforced. The common law defense of medical necessity and the Act of 1988 cannot be simultaneously enforced.

    Discussion.

    The court noted that it was hesitant to abrogate a common law defense absence a clear legislative intent to do so. The Act in 1988 does not contain any express language to indicate that the legislature intended to abrogate the common law defense of necessity. The State’s position that federal common law overrules state common law is incorrect because state schemes differ from the federal courts. Likewise, the court disagreed with the State’s position that the there are inconsistencies between the medical common law necessity defense and the Act of 1988 because they are not clearly identical nor clearly inconsistent. Further, the fact that a necessity defense is asserted when the individual acts contrary to the law implies that one who qualified for the specific requirements under the Act of 1988 does not qualify for the necessity defense. Therefore, only an individual’s conduct that falls outside the conduct, that the Act has made legal, may assert the common law medical necessity defense.  The trial court must consider the common law defense of medical necessity in Kurtz’s case.



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