Reed-Kaliher v. Hoggatt

• Decision Date: 07 April 2015
• Docket Number: No. CV–14–0226–PR.,CV–14–0226–PR.
• Citation: 710 Ariz. Adv. Rep. 6,347 P.3d 136,237 Ariz. 119
• Parties: Keenan REED–KALIHER, Petitioner, v. The Honorable Wallace R. HOGGATT, Judge of the Superior Court of the State of Arizona, in and for the County of Cochise, Respondent, and State of Arizona, Real Party in Interest.
• Court: Arizona Supreme Court

237 Ariz. 119

347 P.3d 136

710 Ariz. Adv. Rep. 6

Keenan REED–KALIHER, Petitioner

v. The Honorable Wallace R. HOGGATT, Judge of the Superior Court of the State of Arizona, in and for the County of Cochise, RespondentandState of Arizona, Real Party in Interest.

No. CV–14–0226–PR.

Supreme Court of Arizona.

April 7, 2015.

Thomas C. Holz (argued), Law Office of Thomas C. Holz, Bisbee, Attorneys for Keenan Reed–Kaliher.

Edward G. Rheinheimer, Cochise County Attorney; Doyle B. Johnstun (argued), Chief Criminal Deputy County Attorney; Brian M. McIntyre, Deputy County Attorney, Bisbee, Attorneys for State of Arizona.

Barbara LaWall, Pima County Attorney; Jacob R. Lines, Deputy County Attorney, Tucson, Attorneys for Amicus Curiae Pima County Attorney.

William G. Montgomery, Maricopa County Attorney; Thomas P. Liddy, Bruce P. White, and Joseph I. Vigil, Deputy County Attorneys, Phoenix, Attorneys for Amici Curiae Maricopa County and Maricopa County Attorney William Montgomery.

David J. Euchner and Sarah L. Mayhew, Tucson, Attorneys for Amicus Curiae Arizona Attorneys for Criminal Justice.

Thomas W. Dean, Phoenix, Attorney for Amicus Curiae National Organization for the Reform of Marijuana Laws.

Justice BERCH authored the opinion of the Court, in which Chief Justice BALES, Vice Chief Justice PELANDER, and Justices BRUTINEL and TIMMER joined.

Opinion

Justice BERCH, opinion of the Court.

¶ 1 Keenan Reed–Kaliher pleaded guilty to possession of marijuana for sale and attempted possession of a narcotic drug for sale. A superior court judge sentenced him to 1.5 years in prison on the marijuana count and suspended the sentence on the narcotic drug count, imposing three years' probation. One of the conditions of his probation required him to “obey all laws.”

¶ 2 While Reed–Kaliher was serving his prison term, the people of Arizona passed Proposition 203, the Arizona Medical Marijuana Act (“AMMA”). AMMA permits “a person who has been diagnosed by a physician as having a debilitating medical condition” to apply for a card identifying the possessor as a “registered qualifying patient.” A.R.S. § 36–2801(13), (14). The definition of “debilitating medical condition” includes a “chronic ... medical condition ... that produces ... severe and chronic pain.” Id. § 36–2801(3)(b).

¶ 3 Reed–Kaliher suffers chronic pain resulting from a fractured hip. After AMMA became state law, Reed–Kaliher obtained a “registry identification card” from the Arizona Department of Health Services that identifies him as a “registered qualifying patient” under AMMA, so that he might obtain medical marijuana to ease his pain.

¶ 4 During the term of Reed–Kaliher's probation, his probation officer added a new condition to his probation, specifying that he “not possess or use marijuana for any reason.” Reed–Kaliher opposed this condition and sought relief in the superior court. He claimed that AMMA's immunity provision, A.R.S. § 36–2811(B), shields him from prosecution, revocation of probation, or other punishment for his possession or use of medical marijuana. That provision specifies that “[a] registered qualifying patient ... is not subject to arrest, prosecution or penalty in any manner, or denial of any right or privilege ... [f]or ... medical use of marijuana pursuant to [AMMA],” as long as the patient complies with statutory limits on quantity and location of marijuana use. Reed–Kaliher asked the court to amend his probation conditions to delete the “no marijuana” term. The court denied the motion.

¶ 5 Reed–Kaliher filed a special action in the court of appeals. That court granted relief, holding that a qualifying patient cannot “be deprived of the privilege of probation solely based on his medical use of marijuana” within the limitations on quantity and location provided by AMMA, and “a condition of probation threatening to revoke his privilege for such use cannot be enforced lawfully and is invalid.” Reed–Kaliher v. Hoggatt (State), 235 Ariz. 361, 364 ¶ 12, 332 P.3d 587, 590 (App.2014). We granted review because the scope of immunity under AMMA is a question of statewide importance.

I. DISCUSSION

¶ 6 We review questions of statutory interpretation de novo. Gutierrez v. Indus. Comm'n of Ariz., 226 Ariz. 395, 396 ¶ 5, 249 P.3d 1095, 1096 (2011). “Our primary objective in construing statutes adopted by initiative is to give effect to the intent of the electorate.” State v. Gomez, 212 Ariz. 55, 57 ¶ 11, 127 P.3d 873, 875 (2006).

A. AMMA's Application to Probationers

¶ 7 AMMA permits those who meet statutory conditions to use medical marijuana. Because marijuana possession and use are otherwise illegal in Arizona, A.R.S. § 13–3405(A), the drafters sought to ensure that those using marijuana pursuant to AMMA would not be penalized for such use. They therefore included an immunity provision that protects users from being “subject to arrest, prosecution or penalty in any manner, or denial of any right or privilege” as long as their use or possession complies with the terms of AMMA. A.R.S. § 36–2811(B).

¶ 8 AMMA broadly immunizes qualified patients, carving out only narrow exceptions from its otherwise sweeping grant of immunity against “penalty in any manner, or denial of any right or privilege.” Id. (emphasis added). It does not allow qualified patients to use medical marijuana “in any correctional facility,” in public places, or while driving or performing other tasks that must be undertaken with care, nor does it immunize possession of marijuana in excess of the quantity limitations provided by the Act. Id. §§ 36–2802, –2811(B). But it does not expressly prohibit those who have been convicted of drug offenses from using medical marijuana pursuant to AMMA. The immunity expressly applies to any “registered qualifying patient.” Id. § 36–2811(B). The State does not contest that Reed–Kaliher is such a patient. Thus, the immunity provision by its terms would include rather than exclude him.

¶ 9 AMMA precludes people who have committed “excluded felony offense[s]” from serving as “designated caregiver[s]” or “medical marijuana dispensary agent [s].” Id. § 36–2801(5)(c), (10). But even such offenders are not disqualified from being “qualifying patient[s].” Id. § 36–2801(13). The “excluded felony offense[s]” include violent crimes and recent drug offenses, except “conduct that would be immune” under AMMA. Id. § 36–2801(7). Thus, AMMA does not deny even those convicted of violent crimes or drug offenses (so long as they are not incarcerated) access to medical marijuana if it could alleviate severe or chronic pain or debilitating medical conditions. Id. §§ 36–2801(3), –2802(B)(3). We therefore conclude that the immunity provision of AMMA does not exclude probationers.

B. Conditioning Probation on Abstention from AMMA–Compliant Marijuana Use

¶ 10 Probation is a privilege. State v. Montgomery, 115 Ariz. 583, 584, 566 P.2d 1329, 1330 (1977). Revocation of probation is a penalty. State v. Lyons, 167 Ariz. 15, 17, 804 P.2d 744, 746 (1990). Under AMMA, if the state extends a plea offer that includes probation, it cannot condition the plea on acceptance of a probationary term that would prohibit a qualified patient from using medical marijuana pursuant to the Act, as such an action would constitute the denial of a privilege. Nor may a court impose such a condition or penalize a probationer by revoking probation for such AMMA-compliant use, as that action would constitute a punishment.

¶ 11 “When granting probation, the trial court has only that authority given by the statutes of Arizona.” State v. Jordan, 120 Ariz. 97, 98, 584 P.2d 561, 562 (1978) ; see also Green v. Superior Court (State), 132 Ariz. 468, 471, 647 P.2d 166, 169 (1982) (to same effect). In this case, an Arizona statute, AMMA, precludes the court from imposing any penalty for AMMA-compliant marijuana use. A.R.S. § 36–2811(B)(1).

¶ 12 The State nonetheless argues that prohibiting one convicted of a drug crime from using marijuana should be permitted because it is a reasonable and necessary condition of probation. Our job here, however, is not to determine the appropriateness of the term, but rather to determine its legality. While the State can and should include reasonable and necessary terms of probation, it cannot insert illegal ones. See Coy v. Fields (State), 200 Ariz. 442, 446 ¶ 13, 27 P.3d 799, 803 (App.2001) (noting that “when ... a sentencing or probation provision in [a] plea agreement [ ] proves to be illegal and unenforceable,” that provision cannot stand).¹

¶ 13 The State observes that probation conditions can prohibit a wide range of behaviors, even those that are otherwise legal, such as drinking alcohol or being around children. While the court can condition probation on a probationer's agreement to abstain from lawful conduct, it cannot impose a term that violates Arizona law.

¶ 14 We therefore hold that any probation term that threatens to revoke probation for medical marijuana use that complies with the terms of AMMA is unenforceable and illegal under AMMA.

C. Harmonizing AMMA's Immunity Provision with Statutes Prohibiting Marijuana Use

¶ 15 The court of appeals' dissent reasoned that an existing statute banning possession or use of narcotic drugs “requires defendants convicted of enumerated drug offenses and placed on probation to be ‘prohibited from using any marijuana’ ” during the term of probation. Reed–Kaliher, 235 Ariz. at 370 ¶ 38, 332 P.3d at 596 (Espinosa, J., dissenting) (quoting A.R.S. § 13–3408(G) ). The dissent maintained that this provision conflicts with the immunity provision and that “we could give meaning to both the AMMA and the more specific drug-sentencing statutes by interpreting the AMMA's silence [regarding] probationers [as] assent to the long-standing limitations on drug use by those convicted of drug-related offenses.” Id.

¶ 16 Just as AMMA provides immunity for charges of violating § 13–3405, which would otherwise subject a person to criminal prosecution for marijuana use, AMMA also...