Reed-Kaliher v. Hoggatt

• Decision Date: 25 July 2014
• Docket Number: No. 2 CA–SA 2014–0015.,2 CA–SA 2014–0015.
• Citation: 332 P.3d 587,691 Ariz. Adv. Rep. 42,235 Ariz. 361
• Parties: Keenan REED–KALIHER, Petitioner, v. Hon. Wallace R. HOGGATT, Judge of the Superior Court of the State of Arizona, in and for the County of Cochise, Respondent, and The State of Arizona, Real Party in Interest.
• Court: Arizona Court of Appeals

235 Ariz. 361
332 P.3d 587
691 Ariz. Adv. Rep. 42

Keenan REED–KALIHER, Petitioner,
v.
Hon. Wallace R. HOGGATT, Judge of the Superior Court of the State of Arizona, in and for the County of Cochise, Respondent,
and
The State of Arizona, Real Party in Interest.

No. 2 CA–SA 2014–0015.

Court of Appeals of Arizona,
Division 2.

July 25, 2014.

[332 P.3d 588]

Law Office of Thomas C. Holz, Bisbee By Thomas C. Holz, for Petitioner.

Edward G. Rheinheimer, Cochise County Attorney By Brian M. McIntyre, Deputy County Attorney, Bisbee, for State of Arizona.

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

Chief Judge ECKERSTROM authored the opinion of the Court, in which Judge KELLY concurred and Judge ESPINOSA dissented.

OPINION
ECKERSTROM, Chief Judge.

¶ 1 In this special action, petitioner Keenan Reed–Kaliher challenges the respondent judge's denial of his motion to modify the conditions of his probation and allow him to use medical marijuana consistent with the Arizona Medical Marijuana Act (AMMA), A.R.S. §§ 36–2801 through 36–2819. For the reasons below, we accept special action jurisdiction and, because the respondent abused his discretion, we grant relief. See Ariz. R.P. Spec. Actions 3(c) (special action relief appropriate when decision constitutes abuse of discretion).

Factual and Procedural Background

¶ 2 Pursuant to a plea agreement, Reed–Kaliher was convicted of possession of marijuana for sale and attempted possession of a narcotic drug for sale. The respondent judge accepted a stipulation in the plea agreement pertaining to the sentences and sentenced Reed–Kaliher to a 1.5–year prison term on the possession for sale count and suspended the imposition of sentence on the attempt count, placing Reed–Kaliher on a three-year term of probation to “commenc[e] upon [his] absolute discharge from prison.”

¶ 3 Reed–Kaliher was released from prison in June 2011 and began serving the probationary

[332 P.3d 589]

term. Among the conditions of probation set forth in the Uniform Conditions of Supervised Probation form that he signed was the requirement that he “[o]bey all laws” and “[n]ot possess or use illegal drugs, toxic vapors, or controlled substances, or use or possess any prescription drugs without a valid prescription.”

¶ 4 He subsequently obtained a “registry identification card” from the Arizona Department of Health Services to allow him to use marijuana under the AMMA. In August 2013, his probation officer imposed an additional condition of probation, which was “deemed necessary to implement the conditions imposed by the Court, and [was] not inconsistent with them,” specifically that he “not possess or use marijuana for any reason.”

¶ 5 In December 2013, Reed–Kaliher filed a motion to modify the conditions of his probation, urging the respondent judge to “rescind[ ] the written implementation ordering him not to use marijuana, because he is licensed by the Arizona Department of Health Services to use marijuana pursuant to the [AMMA].” After a hearing on the motion, the judge denied Reed–Kaliher's motion. He concluded Reed–Kaliher had “agreed to accept the conditions of probation imposed” as part of his plea agreement and the additional condition therefore did not violate the AMMA. He further reasoned that probationers lose many other rights provided to other citizens because of their probationary status. Reed–Kaliher thereafter sought special action relief in this court.

Jurisdiction

¶ 6 We accept special action jurisdiction in this matter for several reasons. The issue presented here “involves a pure question of law in a matter of first impression[,]” and one of statewide importance. State v. Fields, 232 Ariz. 265, ¶ 6, 304 P.3d 1088, 1090 (App.2013); Trebesch v. Superior Court, 175 Ariz. 284, 286–87, 855 P.2d 798, 800–01 (App.1993); see also Ariz. R.P. Spec. Actions 1(a). Furthermore, Reed–Kaliher has no adequate remedy by appeal, as the denial of a motion to modify the terms of probation is not an appealable order. See State v. Jimenez, 188 Ariz. 342, 344–45, 935 P.2d 920, 922–23 (App.1996); see alsoA.R.S. § 13–4033.

Discussion

¶ 7 Arizona voters passed the AMMA in 2010, adding a chapter to Title 36 establishing the conditions under which marijuana may be used medicinally. State v. Okun, 231 Ariz. 462, ¶ 4, 296 P.3d 998, 1000 (App.2013); see also§§ 36–2801 through 36–2804.02. Upon the certification by a qualifying physician that a patient “is likely to receive therapeutic or palliative benefit ... [for a] debilitating medical condition,” § 36–2801(18), the AMMA allows such a patient to obtain a registry identification card and thereby possess and use limited amounts of marijuana for medicinal purposes. Okun, 231 Ariz. 462, ¶ 5, 296 P.3d at 1000; see also§ 36–2804.02. Under § 36–2811, cardholders receive “two different statutory protections”: a rebuttable presumption that the holder's possession or use of marijuana is for medical purposes if it is consistent with the AMMA's requirements and an immunity from state prosecution for medical use of marijuana so long as the cardholder possesses a lawful amount. Fields, 232 Ariz. 265, ¶¶ 13–14, 304 P.3d at 1092.

¶ 8 The statutory immunity set forth in § 36–2811(B)(1) provides that a “registered qualifying patient ... is not subject to arrest, prosecution or penalty in any manner, or denial of any right or privilege, including any civil penalty or disciplinary action by a court or occupational or professional licensing board or bureau” for the patient's “medical use of marijuana pursuant to” the AMMA. The protections of the AMMA do not apply, however, under circumstances specified in § 36–2802, including medical use of marijuana in a correctional facility or in a public place.

¶ 9 Relying on the plain language of this statutory immunity, Reed–Kaliher maintains the respondent judge erred in denying his motion to modify the terms of his probation. He maintains that the AMMA prohibits a court from denying a person any privilege based on his medical use of marijuana and that probation is such a privilege.

[332 P.3d 590]

Therefore, he contends he could not be barred from such use as a condition of probation.

¶ 10 We review a trial court's imposition of conditions of probation for an abuse of discretion and generally will not reverse its imposition of conditions unless the terms “violate fundamental rights or bear no reasonable relationship whatever to the purpose of probation over incarceration.” State v. Turner, 142 Ariz. 138, 144, 688 P.2d 1030, 1036 (App.1984). But, because probation is a matter of “legislative grace,” a “court's power with respect to probation is purely statutory.” State v. Levasseur, 118 Ariz. 597, 598, 578 P.2d 1026, 1027 (App.1978), disapproved on other grounds by State v. Mendivil, 121 Ariz. 600, 592 P.2d 1256 (1979); see also Green v. Superior Court, 132 Ariz. 468, 471, 647 P.2d 166, 169 (1982). A court abuses its discretion when it makes an error of law. Tobin v. Rea, 231 Ariz. 189, ¶ 14, 291 P.3d 983, 988 (2013).

¶ 11 The validity of the conditions prohibiting Reed–Kaliher from possessing or using marijuana for any reason turns on the interpretation of the immunity provision in the AMMA. “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, ¶ 11, 127 P.3d 873, 875 (2006). “When the language [of the initiative] is ‘clear and unambiguous,’ and thus subject to only one reasonable meaning, we [construe it] by applying the language without using other means of statutory construction.” Id., quoting Calik v. Kongable, 195 Ariz. 496, ¶ 10, 990 P.2d 1055, 1057 (1999).

¶ 12 The clear language of the AMMA limits a judge's authority to prohibit a probationer such as Reed–Kaliher from using marijuana, so long as his use is consistent with the AMMA. Reed–Kaliher was eligible for probation on his attempted possession for sale conviction. SeeA.R.S. § 13–3408(A)(2), (D). The AMMA's immunity provision states that a cardholder may not be denied a right or privilege based solely on the protected use or possession of marijuana in compliance with the AMMA. § 36–2811(B). Thus, under the express terms of the immunity provision, Reed–Kaliher could not be deprived of the privilege of probation solely based on his medical use of marijuana, and a condition of probation threatening to revoke his privilege for such use cannot be enforced lawfully and is invalid.¹See State v. Nelson, 346 Mont. 366, 195 P.3d 826, ¶ 27 (2008) (concluding Montana's medical marijuana act, with essentially the same language as Arizona's, prohibited condition of probation limiting medical marijuana use).

¶ 13 Here, the respondent judge determined that Arizona's Uniform Conditions of Supervised Probation, § 6–207 of the Arizona Code of Judicial Administration and Appendix A thereto, required him to order Reed–Kaliher to “obey all laws” as a condition of probation. The respondent concluded further that this condition prohibited Reed–Kaliher from violating federal laws prohibiting marijuana use, notwithstanding the provisions of the AMMA. We cannot agree with the respondent's conclusion.

¶ 14 One of the conditions set forth in Appendix A as a uniform condition of supervised probation is that a probationer “maintain a crime-free lifestyle by obeying all laws, and not engaging or participating in any criminal activity.” Ariz.Code of Jud. Admin. § 6–207 app. A. The AMMA, however, has exempted a limited use of marijuana for medical purposes from the usual unlawful status of marijuana use and created a shield against state action for such use. See§ 36–2811(B). As a threshold matter, then, a probationer violates no state law nor participates in any state criminal activity by using marijuana in conformity with the AMMA. Although federal law prohibits the use of marijuana—and Reed–Kaliher may be subject to federal prosecution or...