State v. Reis

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                     FILE
                 IN CLERKS OFFICE
          IUPREME CC'.Ji"\T, STAn! OF WASHINOlON

                   DA'i':I   MAY 0 7 2015
          'hla.~
             CHIEF JU$ lCE
                                  ¥.(!,9.
              IN THE SUPREME COURT OF THE STATE OF WASHINGTON


              STATE OF WASHINGTON,                       )
                                                         )
                                 Respondent,             )               No. 90281-0
                                                         )
              v.                                         )                 En Bane
                                                         )
              WILLIAM MICHAEL REIS,                      )
                                                         )    Filed        MAY 0 7 2015
                                 Petitioner.             )
                                                         )




                        WIGGINS, J.-William Reis was charged with manufacturing a controlled

          substance after a search of his home produced evidence of a marijuana grow

          operation. Reis moved to suppress the results of the search on the ground that the

          search warrant was invalid, arguing that the 2011 amendments to the Washington

          State Medical Use of Cannabis Act (MUCA), chapter 69.51A RCW, decriminalized the

          possession of cannabis for medical use. The trial court denied Reis's motion to

          suppress, and the Court of Appeals granted discretionary review and affirmed.

                        The 2011 amendments to RCW 69.51A.040 provide in relevant part that the

          "medical use of cannabis in accordance with the terms and conditions of this chapter

          does not constitute a crime . . . . " (Emphasis added.) One of these "terms and

          conditions" is that a medical user must be registered with a registry established by
                                         
          State v. Reis (William Michael), No. 90281-0


          section 901 of the 2011 MUCA amendments. RCW 69.51A.040(2), (3). But the

          governor vetoed section 901, and no registry currently exists. It is thus impossible to

          register "in accordance with the terms and conditions of this chapter ... " after the

          governor's veto.

                   We hold that the plain language of MUCA, supported by the context in which

          the language appears, the overall statutory scheme, and the legislative intent as

          captured by the governor's veto message, does not support the conclusion that the

          medical use of marijuana is not a crime. Therefore, we affirm the Court of Appeals and

          remand for trial.

                                                    FACTS

                   Detective Thomas Calabrese received an anonymous tip in 2012 from an

          individual living in the Shorewood area of Burien, informing him that a man named

          "William" was actively growing marijuana in a house in that neighborhood. The

          informant, who feared retaliation by Reis, declined to provide any additional

          information. Calabrese later drove through Shorewood and was able to observe six

          marijuana plants growing on the back porch of a home. He then observed an individual

          tending those plants. He noted the address and left.

                   Detective Calabrese then asked and was granted permission to use a

          neighbor's yard to observe the porch. From this vantage point, Calabrese was able to

          observe the plants on the porch. He also heard a distinct humming sound coming from

          the northwest side of the target home and observed black plastic covering the daylight

          basement window. Calabrese also noticed condensation on this window.




                                                         2
   Statev. Reis
                      (William
                             Michael),
                                                                 
                                          No. 90281-0


                Leaving his vantage point, Calabrese drove past the target house and noted

          the license plate number on the vehicle parked in front of the house. A directory search

          of the plate indicated that the vehicle belonged to William Reis. Calabrese began

          checking that name and discovered that Reis had been arrested in 2005 for domestic

          violence. During that arrest, officers discovered a large marijuana grow operation in

          the basement, as well as a rifle and $18,000 cash hidden in the attic. Additional

          searches of Reis's financial records in 2005 connected him to a large marijuana grow

          operation in California. Detective Calabrese also learned that Reis had been arrested

          in 2011 for possession of 1.3 grams of marijuana.

                 Calabrese obtained Reis's 2005 booking photo and found that it matched the

          individual he observed tending the marijuana plants on the porch. He then returned to

          Shorewood to interview neighbors in an effort to determine whether Reis was selling

          or distributing marijuana. However, none of Reis's neighbors would talk to him. They

          each asserted that they were afraid of Reis and that they did not want Reis to retaliate

          against them. One of the neighbors even informed Calabrese that they had purchased

          a firearm specifically to protect themselves from Reis.

                 Detective Calabrese put all of this information in an affidavit of probable cause

          to support a search warrant of Reis's home. Judge Eide granted a search warrant,

          finding probable cause to believe that Reis was violating Washington's Uniform

          Controlled Substances Act, chapter 69.50 RCW. 1 A search of Reis's home pursuant


          1 Calabrese'saffidavit did not allege a violation of federal law, and the record does not suggest
          the he was pursuing a violation of federal law. Therefore, the sole question on appeal is
          whether Detective Calabrese had probable cause of a violation of state law. See United
          States v. $186,416.00 in U.S. Currency, 590 F.3d 942, 948 (9th. Cir. 2009) (requiring state


                                                         3
   Statev. Reis
                      (William
                             Michael),
                                                                  
                                          No. 90281-0


          to the search warrant revealed plants, scales, ledgers, sales receipts, and tools

          indicative of a marijuana grow operation. The search also revealed 37 plants and

          210.72 ounces of cannabis. 2

                 The State charged Reis with violating chapter 69.50 RCW, the Uniform

          Controlled Substances Act. Reis moved to suppress the evidence found in his home,

          asserting that the search warrant was not supported by probable cause. The trial court

          denied Reis's motion to suppress. The trial court granted Reis's motion for expedited

          discretionary review in the Court of Appeals and certified this issue for immediate

          review under RAP 2.3(b)(4) 3 before Reis's scheduled trial date. The Court of Appeals,

          Division One, granted discretionary review and held in a published opinion that the

          authorized use of medical marijuana under RCW 69.51A.040 does not preclude an

          officer from searching; compliant use under the statute is an affirmative defense that

          does not negate probable cause required for a search warrant. State v. Reis, 180 Wn.

          App. 438, 322 P.3d 1238 (2014). We granted review and now affirm.




          law enforcement officers to indicate pursuits of violations of federal law in their affidavits, or
          to seek a search warrant from a federal magistrate, to support a finding of probable cause for
          the violation of a federal crime).
          2The "terms and conditions" of RCW 69.51A.040(1 )(a)(i) that render the medical use of
          marijuana legal require that a qualifying patient or designated provider possess no more than
          15 marijuana plants and no more than 24 ounces of useable cannabis.
          3 RAP 2.4(b)(4) provides for discretionary review when "[t]he superior court has certified ...
          that the order involves a controlling question of law as to which there is substantial ground for
          a difference of opinion and that immediate review of the order may materially advance the
          ultimate termination of the litigation."


                                                          4
                                                
          State v. Reis (William Michael), No. 90281-0


                                                        ANALYSIS

                         This case asks us to determine whether RCW 69.51A.040, as enacted following

          Governor Gregoire's 2011 veto, decriminalizes the medical use of marijuana. 4 In

          answering this question, we apply well established principles of statutory interpretation

          to chapter 69.51A RCW. These principles lead to the conclusion that the medical use

          of marijuana is not lawful because compliance with RCW 69.51A.040 is currently

          impossible. Further, we reject Reis's arguments regarding the effect of the governor's

          veto; riothing about the veto process changes our analysis of the enacted statute.

              I.         Standard of Review

                         We review questions of statutory interpretation de novo. Ass'n of Wash. Spirits

          & Wine Distrib.         v.   Wash. State Liquor Control Bd., 182 Wn.2d 342, 350, 340 P.3d 849

          (2015). The court discerns legislative intent from the plain language enacted by the

          legislature, considering the text of the provision in question, the context of the statute

          in which the provision is found, related provisions, amendments to the provision, and

          the statutory scheme as a whole. /d. (citing Dep't of Ecology           v.   Campbell & Gwinn,

          LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002)).

              II.        Overview of Washington's Medical Marijuana Laws

                         Marijuana is generally a schedule I unlawful controlled substance, the

          possession or cultivation of which is prohibited. 5 RCW 69.50.204(c)(22); RCW


          4Reis concedes the search was valid if we conclude that chapter 69.51A RCW provides only
          an affirmative defense. This opinion does not discuss the propriety of the search because we
          hold that the statute provides qualifying patients and designated providers with only an
          affirmative defense.
          5Initiative Measure 502, approved in November 2012, legalized the possession of small
          amounts of marijuana. The initiative was not in effect when this search warrant issued, and

                                                              5
   Statev. Reis
                      (William
                             Michael),
                                                                
                                          No. 90281-0


          69.50.401 (1 ). It has maintained this classification by the Washington State Legislature

          since 1971. RCW 69.50.204(c)(22). Since 1971, the possession, manufacture, and

          distribution of marijuana has been generally prohibited. See RCW 69.50.401-.455.

          However, in 1998, the legislature enacted the MUCA, chapter 69.51A RCW, creating

          an exception for the medicinal use of marijuana. This exception created an affirmative

          defense for qualifying patients and designated caregivers who could establish that

          they complied with the requirements of that chapter. Former RCW 69.51A.040(1)

          (1998).

                 In 2011, the legislature amended MUCA by adopting Engrossed Second

          Substitute Senate Bill (E2SSB) 5073. The stated purpose of these amendments, as

          asserted in section 101 (vetoed), was to ensure that

                         (a) Qualifying patients and designated providers complying with
                 the terms of this act and registering with the department of health will no
                 longer be subject to arrest or prosecution, other criminal sanctions, or
                 civil consequences based solely on their medical use of cannabis;
                         (b) Qualifying patients will have access to an adequate, safe,
                 consistent, and secure source of medical quality cannabis; and
                         (c) Health care professionals may authorize the medical use of
                 cannabis in the manner provided by this act without fear of state criminal
                 or civil sanctions.

          E2SSB 5073, § 101 (as passed by the legislature) (vetoed);            see LAWS OF 2011, ch.
          181, § 101. In order to achieve these goals, the legislature created a two-tiered system

          of medical exceptions to the general prohibitions on possessing or cultivating

          marijuana. E2SSB 5073 §§ 401, 402, 406 (codified as RCW 69.51A.040, .043(1 ), (2)).




          the parties agree that the initiative has no bearing on this case. We do not consider or analyze
          the initiative in this opinion.

                                                         6
                                           
          State v. Reis (William Michael), No. 90281-0


                   Section 901 of the bill directed the state Department of Health and the state

          Department of Agriculture to "adopt rules for the creation, implementation,

          maintenance, and timely upgrading of a secure and confidential registration system."

          E2SSB 5073, § 901 (1 ). Any established registry was required to allow

                          (a) A peace officer to verify at any time whether a health care
                   professional has registered a person as either a qualifying patient or a
                   designated provider; and
                          (b) A peace officer to verify at any time whether a person,
                   location, or business is licensed ....

          E2SSB 5073, § 901 (as passed by the legislature) (vetoed);       see LAWS OF 2011, ch.
          181, § 901. Registration of qualifying patients and designated providers was optional.

          Registration would place the burden on law enforcement officials to establish that the

          terms and conditions of the medical marijuana exceptions were not being satisfied.

          E2SSB 5073, § 901 (4) (vetoed);    see RCW 69.51A.040. Once established, the registry
          would provide registered users heightened protection from arrest, prosecution,

          criminal sanctions, and civil consequences based solely on their medical use of

          marijuana. E2SSB 5073, § 102(2)(a) (codified as RCW 69.51A.005(2)). Otherwise

          compliant but nonregistered, users were entitled to raise an affirmative defense.

          E2SSB 5073, § 402 (codified as RCW 69.51A.043).

                   In April 2011, the United States Attorneys for the Eastern and Western Districts

          of Washington wrote an advisory letter to Governor Gregoire regarding Laws of 2011,

          chapter 181. This letter explained the Department of Justice's position on the bill:

                          "The Washington legislative proposals will create a licensing
                   scheme that permits large-scale marijuana cultivation and distribution.
                   This would authorize conduct contrary to .federal law and thus, would
                   undermine the federal government's efforts to regulate the possession,
                   manufacturing, and trafficking of controlled substances .... In addition,
                   state employees who conducted activities mandated by the Washington
                                                         7
    v. Reis
                  (William
                         Michael),
                                                        
          State                       No. 90281-0


                  legislative proposals would not be immune from liability under the CSA
                  [Controlled Substances Act, 21 U.S.C. ch. 13]. Potential actions the
                  Department could consider include injunctive actions to prevent
                  cultivation and distribution of marijuana and other associated violations
                  of the CSA; civil fines; criminal prosecution; and the forfeiture of any
                  property used to facilitate a violation of the CSA."

          Cannabis Action Coal.    v.   City of Kent, 180 Wn. App. 455, 464, 322 P.3d 1246 (first

          alteration in original) (footnote omitted), review granted, 182 Wn.2d 1022, 336 P.3d

          1165 (2014 ). Following receipt of this letter, the governor vetoed 36 sections that

          would have established and monitored a state licensed medical marijuana registry,

          including the legislature's statement of intent in section 101. See LAWS OF 2011, ch.

          181, at 1376 (governor's veto message). No registry currently exists. However, the

          governor did not veto sections 401, 402, or 406, reasoning that the latter sections

          were still meaningful because they "establish affirmative defenses" and "govern those

          who have not registered." /d. Sections 402 and 406 (codified as RCW 69.51A.043(1)

          and (2), respectively) establish affirmative defenses for patients who have not

          registered. Section 401 (codified as RCW 69.51A.040) identifies the requirements for

          qualifying patients to receive heightened protections, beyond the ability to establish

          an affirmative defense. As enacted, RCW 69.51A.040 provides heightened protection

          for qualifying patients and designated providers who, among other things, register with

          the Department of Health.

           Ill.   Statutory Interpretation

                  RCW 69.51A.040, as passed, does not decriminalize the medical use of

          marijuana. Instead, the plain language of the statute establishes a limited exception

          to the general prohibition against marijuana that existed at the time that the search

          warrant in this case issued. This interpretation is supported by the context in which

                                                       8
   Statev. Reis
                      (William
                             Michael),
                                                            
                                          No. 90281-0


          the statute appears, the statute's placement within the statutory scheme, and the

          governor's veto message accompanying E2SSB 5073. See           LAWS OF   2011, ch. 181, at

          1374-76. The legislature may have intended to create heightened protections for

          qualifying patients who registered. However, because registration is currently

          impossible, the statute provides qualifying patients with only an affirmative defense

          until the legislature is able to establish a registry. Therefore, we reject Reis's argument

          and affirm the Court of Appeals.

             A. Plain language of the statute

                We begin with the plain language of the statute. As enacted, RCW 69.51A.040

          reads in relevant part:

                 The medical use of cannabis in accordance with the terms and conditions
                 of this chapter does not constitute a crime and a qualifying patient or
                 designated provider in compliance with the terms and conditions of this
                 chapter may not be arrested, prosecuted, or subject to other criminal
                 sanctions or civil consequences ... if:



                     (2) The qualifying patient or designated provider presents his or her
                 proof of registration with the department of health, to any peace officer who
                 questions the patient or provider ... ;

                      (3) The qualifying patient or designated provider keeps a copy of his
                 or her proof of registration with the registry established in section 901 of
                 this act and the qualifying patient or designated provider's contact
                 information posted prominently next to any cannabis plants, cannabis
                 products, or useable cannabis located at his or her residence;



                        (6) The investigating peace officer has not observed evidence of
                 any of the circumstances identified in section 901 (4) of this act.

                 The language of this statute is clear and unambiguous: the medical use of

          cannabis is not a crime if each of the terms and conditions is complied with by either

                                                       9
   Statev. Reis
                      (William
                             Michael),
                                                            
                                          No. 90281-0


          qualifying patients or designated providers. The terms and conditions are provided for

          in RCW 69.51A.040, and the terms "qualifying patient" and "designated provider" are

          defined. See RCW 69.51A.01 0. Because the terms are defined within the statute, we

          need not look outside the statute to determine their meaning. State v. Smith, 117

          Wn.2d 263, 271, 814 P.2d 652 (1991) ('"Words are given the meaning provided by the

          statute or, in the absence of specific definition, their ordinary meaning."' (quoting State

          v. Standifer, 110 Wn.2d 90, 92, 750 P.2d 258 (1988))). It follows that one who does

          not satisfy the terms and conditions, or who is not a qualifying patient or a designated

          provider, is not entitled to the enumerated protections in this statute.

             B. Chapter 69.51A RCW creates an affirmative defense to the general
                prohibition on marijuana

                 The context of the statute supports our plain language interpretation. We

          interpret laws dealing with the same or similar issues by considering them together.

          Bainbridge Island Police Guild v. City of Puyallup, 172 Wn.2d 398, 423, 259 P.3d 190

          (2011 ). This is particularly relevant when analyzing exceptions-we do not analyze

          individual subsections in isolation from the other sections of the statute when doing

          so would undermine the overall statutory purpose. In re Pers. Restraint of Adams, 178

          Wn.2d 417, 424, 309 P.3d 451 (2013).

                 The Controlled Substances Act makes it a crime to possess, manufacture, or

          distribute marijuana in Washington. See RCW 69.50.401-.455. The medical use of

          marijuana is an exception to this general prohibition, RCW 69.51A.020. The

          protections available through this exception vary based on a qualifying patient's or

          designated provider's adherence to the terms and conditions governing the exception.

          RCW 69.51A.040. In this context, the amended MUCA clearly establishes a tiered

                                                      10
                                              
          State v. Reis (William Michael), No. 90281-0


          system of protections for compliant, qualifying users of medical marijuana: RCW

          69.51A.040 and a series of affirmative defenses for qualifying patients failing the

          requirements of RCW 69.51A.040. RCW 69.51A.043, .045, .047.

                   RCW 69.51A.040 decriminalizes cannabis used for medical purposes in

          accordance with the statutory scheme. This statute affords the highest level of

          protections for qualifying patients and designated providers who use cannabis "in

          accordance with the terms and conditions of this chapter." RCW 69.51A.040. There

          are six required "terms and conditions" contained within RCW 69.51A.040. Subsection

          (1) places limits on the quantity of cannabis that a qualifying patient or designated

          provider may possess. Subsections (2) and (3) require registration with the

          Department of Health-now impossible in light of the governor's veto-and require

          that the patient keep their registration within their home and present it to inquiring

          investigating officers. Subsections (4 ), (5), and (6) require that the investigating officer

          not possess evidence that the qualifying patient or designated provider is converting

          marijuana for their own use or benefit, or otherwise violating distribution requirements

          or registration requirements. If a qualifying patient or designated provider complies

          with all of these requirements, including registration, the use of marijuana "does not

          constitute a crime." /d.

                   RCW 69.51A.043 provides an affirmative defense for the medical use of

          cannabis. The legislature made the distinction between section .040 and section .043

          rest on whether the user was registered in the state registry. RCW 69.51A.040

          (expressly requiring registration and display of registration); RCW 69.51A.043(2) ("A

          qualifying patient or designated provider who is not registered with the registry ...


                                                         11
   Statev. Reis
                      (William
                             Michael),
                                                             
                                          No. 90281-0


          may assert an affirmative defense to charges of violations of state law relating to

          cannabis through proof at trial, by a preponderance of the evidence, that he or she

          otherwise meets the requirements of RCW 69.51A.040.").

                Reis argues that this language is ambiguous because "RCW 69.51A.040

          decriminalizes the same activity which RCW 69.51A.043 affords an affirmative

          defense." But nothing in the text of the statute enacted following the governor's veto

          supports this interpretation. Even though there is no registry, we cannot simply read

          that requirement out of the statute. See G-P Gypsum Corp.      v.   Dep't of Revenue, 169

          Wn.2d 304, 309, 237 P.3d 256 (201 0) ('"[s]tatutes must be interpreted and construed

          so that all the language used is given effect, with no portion rendered meaningless or

          superfluous"' (internal quotation marks omitted) (quoting State     v.   J.P, 149 Wn.2d 444,

          450, 69 P.3d 318 (2003))). By its language, RCW 69.51A.040 decriminalizes activities

          for individuals who have, amongst other things, registered with the Department of

          Health, while RCW 69.51A.043 provides an affirmative defense for those who have

          not registered.

                An affirmative defense admits the defendant committed a criminal act but

          pleads an excuse for doing so. State   v.   Votava, 149 Wn.2d 178, 187-88,66 P.3d 1050

          (2003). Reis's reading would render RCW 69.51A.043 superfluous-there is no need

          for an affirmative defense to provide an excuse for conduct that is not unlawful. See

          State v. Kurtz, 178 Wn.2d 466, 478, 309 P.3d 472 (2013) (explaining that an affirmative

          defense is necessary only when one's conduct falls outside the specific conduct

          protected under RCW 69.51A.040). Thus, Reis's argument turns the plain language

          of the statute on its head: the affirmative defense provisions are essential protections


                                                        12
   Statev. Reis
                      (William
                             Michael),
                                                          
                                          No. 90281-0


          for qualifying patients and designated providers because no one can enjoy the

          heightened protections of RCW 69.51A.040 in the absence of a registry.

             C. Legislative Intent
                For the reasons discussed above we hold that chapter 69.51A RCW provides

          medical marijuana patients with only an affirmative defense. Reis responds to these

          plain language arguments by asserting that RCW 69.51A.040 plainly reads, "[T]he

          medical use of cannabis ... does not constitute a crime," citing to our opinion in Kurtz,

          178 Wn.2d at 478. He also argues that the codified legislative intent of RCW

          69.51A.005 plainly articulates the purpose of the amendment and that our reading

          should give effect to this purpose.

                Kurtz addressed whether the 2011 amendments to MUCA abrogated the

          common law medical necessity defense. The court, in holding that the amendments

          did not abrogate the common law medical necessity defense, stated that "the

          legislature amended the Act making qualifying marijuana use a legal use, not simply

          an affirmative defense." /d. at 476 (emphasis added). Later in that paragraph, the court

          repeated that "[t]he 2011 amendment       leg~lizing   qualifying marijuana use strongly

          suggests that the Act was not intended to abrogate or supplant the common law

          [medical] necessity defense." /d. (emphasis added). Rather than interpret the statute,

          these statements mirror the language in RCW 69.51A040 that "the medical use of

          cannabis in accordance with the terms and conditions of this chapter does not

          constitute a crime." (Emphasis added.) Because registration is a requirement for

          qualifying marijuana use under RCW 69.51A.040, Kurtz does not support Reis's

          argument.


                                                      13
   Statev. Reis
                      (William
                             Michael),
                                                                  
                                          No. 90281-0


                  Reis also argues that the legislature intended to decriminalize the medical use

          of marijuana by giving patients heightened protections from searches and arrest. This

          may be true; however, the legislative intent codified as RCW 69.51A.005 6 does not

          trump the plain language of the statute to create an ambiguity. Declarations of intent

          are not controlling; instead, they serve "only as an important guide in determining the

          intended effect of the operative sections." Kilian v. Atkinson, 147 Wn.2d 16, 23, 50

          P.3d 638 (2002). This is true even when the codified intent speaks directly to the

          enacted statute. Here, the governor's veto struck 36 of the 58 original sections; the

          legislature's statement of intent speaks to a statute that was never enacted.

                  Though the legislature's initial intent in passing this statute was never realized,

          Governor Gregoire articulated her intent for the surviving portions of the amendments

          in her veto message. See LAWS OF 2011, ch. 181, at 1374-76 (governor's veto

          message). Our "'fundamental objective in construing a statute is to ascertain and carry

          out the legislature's intent,"' Lake v. Woodcreek Homeowner's Ass'n, 169 Wn.2d 516,

          526, 243 P.3d 1283 (201 0) (quoting Arborwood Idaho, LLC v. City of Kennewick, 151




          6   RCW 69.51A.005(2) reads as follows:

                   Therefore, the legislature intends that:

                        (a) Qualifying patients with terminal or debilitating medical conditions who,
                   in the judgment of their health care professionals, may benefit from the medical
                   use of cannabis, shall not be arrested, prosecuted, or subject to other criminal
                   sanctions or civil consequences under state law based solely on their medical
                   use of cannabis, notwithstanding any other provision of law;

                      (b) Persons who act as designated providers to such patients shall also not
                   be arrested, prosecuted, or subject to other criminal sanctions or civil
                   consequences under state law, notwithstanding any other provision of law,
                   based solely on their assisting with the medical use of cannabis ....


                                                              14
   Statev. Reis
                      (William
                             Michael),
                                                          
                                          No. 90281-0


          Wn.2d 359, 367, 89 P.3d 217 (2004)), and "[i]n approving or disapproving legislation,

          the Governor acts in a legislative capacity and as part of the legislative branch of

          government." Hallin v. Trent, 94 Wn.2d 671, 677, 619 P.2d 357 (1980) (quoting Shelton

          Hotel Co.   v.   Bates, 4 Wn.2d 498, 506, 104 P.2d 478 (1940) ("When referring to what

          the legislature intended, we must not forget that the governor ... [is] acting in a

          legislative capacity, and we cannot therefore consider the intent of the house and the

          senate apart from the intent of the governor.")). Here, the governor's veto message is

          the only statement of legislative intent speaking to the removal of the registry from the

          bill as enacted. The veto message conveys the governor's recognition that the bill will

          not provide heightened arrest and seizure protection and that qualifying patients and

          designated providers will instead be able to assert an affirmative defense. LAWS OF

          2011, ch. 181, at 1374-76 (governor's veto message).

                 Governor Gregoire explained that she decided to veto the registry because she

          was "open to legislation that establishes a secure and confidential registration system

          to provide arrest and seizure protections under state law to qualifying patients .... "

          /d. at 1376. This strongly suggests that the governor recognized that this bill would

          not provide those protections. She then announced that she would veto sections 901

          and 902, stating that "[w]ithout a registry, these sections are not meaningful." /d.

          However, the governor declined to veto sections 402 and 406; these sections provide

          an affirmative defense for qualifying patients and designated providers who are not

          registered. /d. The governor explicitly recognized that these sections remain

          meaningful without a registry "[b]ecause these sections govern those who have not

          registered." /d. Thus, the legislative intent does not support Reis's argument.


                                                       15
   Statev. Reis
                      (William
                             Michael),
                                                         
                                          No. 90281-0


                Applying each of these well-established principles of statutory interpretation

          leads to the conclusion that RCW 69.51A.040 does not decriminalize the medical use

          of cannabis. It is currently impossible to comply with each of the requirements in RCW

          69.51A.040 because a registry does not currently exist. Following the governor's veto,

          chapter 69.51A RCW does not provide for the heightened search and arrest

          protections that the legislature may have intended. See RCW 69.51A.005(2); E2SSB

          5073, § 101 (vetoed). Instead, qualifying patients and designated providers are

          provided with an affirmative defense and RCW 69.51A.040 establishes the elements

          for raising that defense. The possibility remains that the legislature may yet amend

          the statute to create a registry; this does not suggest that the current statute has

          multiple reasonable interpretations. It also does not suggest that the legislature

          intended to decriminalize marijuana without the benefits of a registry.

             D. We may not modify the plain and unambiguous statutory language

                Despite Reis's arguments, we do not have the authority to rewrite the statute to

          provide the enhanced protections that the legislature may have intended had it

          anticipated the governor's veto. The court is not permitted to "speculate as to what the

          legislature intended, had it foreseen the veto." Shelton Hotel Co.   v. Bates, 4 Wn.2d
          498, 509, 104 P.2d 478 (1940). Instead, we are left with the statute '"to be considered

          now just as it would have been if the vetoed provisions had never been written into

          the bill at any stage of the proceedings."' /d. at 506 (quoting State ex ref. Stiner   v.
          Yelle, 174 Wash. 402, 408, 25 P.2d 91 (1933)). Indeed, this situation is analogous to

          a legislative omission, a situation in which we have long recognized that

                 we do not have the power to read into a statute that which we may
                 believe the legislature has omitted, be it an intentional or an inadvertent

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                      (William
                             Michael),
                                                          
                                          No. 90281-0


                omission .... [l]t would be a clear judicial usurpation of legislative power
                for us to correct that legislative oversight.

          State v. Martin, 94 Wn.2d 1, 8, 614 P.2d 164 (1980) (citations omitted). It is not this

          court's job to remove words from statutes or to create judicial fixes, even if we think

          the legislature would approve. Statutes that frustrate the purpose of others, though

          perhaps unintentionally, are "purely a legislative problem." State ex ref. Hagan       v.
          Chinook Hotel, Inc., 65 Wn.2d 573, 578, 399 P.2d 8 (1965). Until the legislature

          amends the statute or creates a registry, the MUCA provides qualifying patients with

          only an affirmative defense.

          IV.   The Veto Does Not Undermine Our Analysis of the Enacted Statute

                This statutory analysis has interpreted the relative statutes as if the legislature

          had written the statutes as they were enacted following the governor's veto. Nothing

          about the governor's veto changes the way we interpret these statutes.

                The governor's veto power, broadly construed since the territorial days, has

          evolved over time. See generally Wash. State Legislature      v.   Lowry, 131 Wn.2d 309,

          315-16, 931 P.2d 885 (1997). Initially, the governor's veto extended to full bills,

          sections of bills, and items in bills. WASH. CONST. 1889, art. Ill, § 12. This power was

          limited by the 62nd amendment in 1974. Lowry, 131 Wn.2d at 316. Today, the

          Washington Constitution confers on the governor general veto authority over

          legislation and a different "!.ine item" veto power over "appropriation items":

                 If any bill presented to the governor contain several sections or
                 appropriation items, he may object to one or more sections or
                 appropriation items ... Provided, That he may not object to less than an
                 entire section, except that if the section contain one or more
                 appropriation items he may object to any such appropriation item or
                 items.


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                      (William
                             Michael),
                                                         
                                          No. 90281-0


          WASH. CONST. art. Ill,§ 12 (amend. 62). Thus, under the general veto power exercised

          in this case, the governor may veto a whole bill or a section of a bill but cannot veto

          individual items or lines in bills. /d.

                 Governor Gregoire lawfully vetoed 36 of the 58 sections of chapter 181. LAWS

          OF 2011, ch. 181, at 1376 (governor's veto message). She vetoed section 901 which

          would have established and monitored a state licensed medical marijuana registry,

          but did not veto references to section 901, in the amended MUCA. As a result of the

          governor's choice not to veto references to the registry, these references remain in

          the bill, codified as chapter 69.51A RCW. Therefore, we must analyze the effect that

          Governor Gregoire's veto has on the remaining references to the vetoed sections.

          Specifically, we must address the references to a state registry.

                 The governor's veto completely removes the vetoed material from the

          legislation. Hallin, 94 Wn.2d at 677. The act is "'to be considered now just as it would

          have been if the vetoed provisions had never been written into the bill at any stage of

          the proceedings."' Shelton Hotel Co., 4 Wn.2d at 506 (quoting State ex ref. Stiner, 174

          Wash. at 408). Reis relies on these cases, as well as Washington Federation of State

          Employees v. State, 101 Wn.2d 536, 545, 682 P.2d 869 (1984 ), to argue that we must

          disregard not only the vetoed provisions themselves but also all remaining references

          to the vetoed sections. But this case differs from Hallin, Shelton Hotel Co., and

          Washington Federation in one major way: in those cases the disregarded language

          was actually vetoed; in this case, the references to the registry were never vetoed

          from RCW 69.51A.040. Since the references to section 901 were not vetoed from




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   Statev. Reis
                      (William
                             Michael),
                                                          
                                          No. 90281-0


          RCW 69.51A.040, we cannot disregard them. Accordingly, we reject Reis's argument

          that the medicinal use of cannabis is no longer a crime.

                Contrary to Reis's assertions, Washington Federation does not require this

          court to strike references to vetoed legislation. Washington Federation concerned a

          challenge to Governor Spellman's veto of Substitute House Bill 1226, 47th Leg., 1st

          Ex. Sess. ch. 53, at 511 (Wash. 1982). 101 Wn.2d at 538. The veto explicitly removed

          section 30 and all references to that section. /d. The petitioner in Washington

          Federation argued that the removal of the related items was a line item veto in violation

          of article Ill, section 12 of the Washington State Constitution. !d. In rejecting that

          argument, this court held:

                The veto of Governor Spellman was of an entire section and was valid.
                The deleted references to section 30 were incidentally vetoed purely as
                a ministerial act. If not deleted, the Code Reviser, pursuant to RCW
                1.08.015(2)(m), would have taken out such "manifestly obsolete"
                references.

          /d. at 544. Thus, Washington Federation permitted the incidental veto by the executive

          branch of individual line items, despite the general prohibitions of Washington

          Constitution article Ill, section 12 (amend. 62). /d. It does not address whether a court

          must evaluate and disregard individual items of legislation that reference a vetoed

          section when those items survived the governor's veto. We decline to read these

          requirements out of the statute when they were not actually vetoed by the governor.

                 Governor Gregoire's veto message carefully and deliberately distinguishes

          between references that "are not meaningful" and those that "remain meaningful"

          following her veto of the registry. But even if we believed that the governor overlooked

          these particular references, we do not have the power to edit the language of the


                                                      19
   Statev. Reis
                      (William
                             Michael),
                                                          
                                          No. 90281-0


          enacted statute. In exercising the veto power, the governor is acting in a legislative

          capacity. Shelton Hotel Co., 4 Wn.2d at 506. This court does not have the authority

          to read language out of a statute, even when we believe that the statute contains

          errors or inadvertent omissions. Cf. Martin, 94 Wn.2d at 8 (court does not have the

          power to "read into a statute that which we may believe the legislature has omitted,

          be it an intentional or an inadvertent omission"). The governor's veto did not eliminate

          the statutory language requiring registration in RCW 69.51A.040, and we cannot

          eliminate that language ourselves. We instead must limit our interpretation to the

          enacted statute; we therefore regard "the excised material ... as though it had never

          been written by the legislature." Hallin, 94 Wn.2d at 678.

           V.   Lawfulness of the Search Warrant

                We hold that the search was valid because the plain language of the statute

          and the legislative intent as expressed in the governor's veto message lead to the

          conclusion that a user or possessor of cannabis may raise only an affirmative defense

          under MUCA. Reis concedes that the possibility of proving the affirmative defense

          does not undermine probable cause for a search warrant. State      v. Fry,   168 Wn.2d 1,

          6, 228 P.3d 1 (201 0).

                                              CONCLUSION

                We affirm the Court of Appeals and remand for trial consistent with this opinion.




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   Statev. Reis
                      (William
                             Michael),
                                                 
                                          No. 90281-0




                                                           (/




                WE CONCUR.




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