State v. Hardesty

• Decision Date: 08 September 2009
• Docket Number: No. CR-08-0244-PR.,CR-08-0244-PR.
• Citation: 222 Ariz. 363,214 P.3d 1004
• Parties: STATE of Arizona, Appellee, v. Danny Ray HARDESTY, Appellant.
• Court: Arizona Supreme Court

214 P.3d 1004

222 Ariz. 363

STATE of Arizona, Appellee, v. Danny Ray HARDESTY, Appellant.

No. CR-08-0244-PR.

Supreme Court of Arizona, En Banc.

September 8, 2009.

Terry Goddard, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation, Phoenix, Joseph L. Parkhurst, Assistant Attorney General, Tucson, Attorneys for State of Arizona.

Derienzo and Williams, P.L.L.C. By Daniel J. DeRienzo, Craig Williams, Prescott Valley, Attorneys for Danny Ray Hardesty.

OPINION

BERCH, Chief Justice.

¶ 1 Danny Ray Hardesty seeks review of his convictions for possession of marijuana and drug paraphernalia. He attempted to assert a religious use defense to the charges pursuant to Arizona Revised Statutes ("A.R.S.") § 41-1493.01 (2004), but was precluded from doing so. We hold that although religious exercise may be asserted as a defense, Hardesty's defense fails as a matter of law. We affirm the convictions.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 On April 15, 2005, Hardesty was driving his van at night when an officer stopped him because one headlight was out. The officer smelled marijuana and recovered a baggie containing fourteen grams of marijuana from a daypack on the front floorboard of the van, less than two feet from the driver, and a marijuana joint Hardesty had just thrown out the window.

¶ 3 Before trial, Hardesty moved to dismiss the charges on the ground that his use of marijuana was a sacrament of his church, the Church of Cognizance. He argued that such use was protected by the free exercise clauses of the Arizona and Federal Constitutions,¹ Arizona's Free Exercise of Religion Act² ("FERA"), the Religious Freedom Restoration Act of 1993³ ("RFRA"), and the International Religious Freedom Act of 1998.⁴

¶ 4 At an evidentiary hearing regarding the religious use defense, Hardesty presented evidence that marijuana is the main religious sacrament of the Church of Cognizance. He referred the court to the church's website and recorded statement of religious sentiment, which inform that the church is made up of "individual orthodox member monasteries," each consisting of a family unit that establishes its own mode of worship.⁵ Hardesty's mode was to smoke and eat marijuana without limit as to time or place.

¶ 5 While Hardesty's motion to dismiss was pending, the State moved in limine to exclude any reference to a religious freedom defense at trial. The trial court denied Hardesty's motion to dismiss and granted the State's motion in limine, finding that Hardesty's defense was "not recognized ... under Arizona law." After a bench trial, the court convicted Hardesty of possessing marijuana and drug paraphernalia. The court of appeals affirmed, ostensibly taking judicial notice of the harmful effects of marijuana to establish the State's compelling interest in banning the possession of marijuana. State v. Hardesty, 220 Ariz. 149, 151, ¶ 1, 204 P.3d 407, 409 (App.2008).

¶ 6 We granted review because the religious exercise defense presents an issue of first impression and statewide importance. See Ariz. R.Crim. P. 31.19(c)(3); State v. Hicks (Durnan), 219 Ariz. 328, 329, ¶ 8, 198 P.3d 1200, 1201 (2009). We have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution, A.R.S. § 12-120.24 (2003), and Arizona Rule of Criminal Procedure 31.19.

II. DISCUSSION

¶ 7 Although Hardesty presents his defense under provisions of the Arizona and Federal Constitutions, various federal statutes, and Arizona's Free Exercise of Religion Act ("FERA"), we need address only Hardesty's FERA defense.⁶ We review this question of statutory interpretation de novo, using the statutory language to help us ascertain and effectuate the legislature's intent. State v. Peek, 219 Ariz. 182, 183-84, ¶¶ 6, 11, 195 P.3d 641, 642-43 (2008). When, as here, the legislature enacts a statement of purpose, we interpret the statute in light of that purpose. See Backus v. State, 220 Ariz. 101, 104, ¶ 9, 203 P.3d 499, 502 (2009).

A. FERA

¶ 8 The legislature passed FERA in 1999 to protect Arizona citizens' right to exercise their religious beliefs free from undue governmental interference. 1999 Ariz. Sess. Laws, ch. 332, § 2 (1st Reg.Sess.). FERA parallels RFRA, 42 U.S.C. §§ 2000bb to 2000bb-4, a federal act that also protects free exercise rights, but does not apply to the states. City of Boerne v. Flores, 521 U.S. 507, 534-36, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997).

¶ 9 The operative portion of FERA permits the government to burden the exercise of religion only if the "application of the burden to the person is both ... [i]n furtherance of a compelling governmental interest [and][t]he least restrictive means of furthering that compelling governmental interest." A.R.S. § 41-1493.01(C) (2004). The government's violation of this section provides a "defense in a judicial proceeding." Id. § 41-1493.01(D).

B. Establishing FERA Claims

1. Allocation of burdens

¶ 10 A party who raises a religious exercise claim or defense under FERA must establish three elements: (1) that an action or refusal to act is motivated by a religious belief, (2) that the religious belief is sincerely held, and (3) that the governmental action substantially burdens the exercise of religious beliefs. Cf. Wisconsin v. Yoder, 406 U.S. 205, 215-18, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (requiring showing that a government action substantially interferes with a sincerely held religious belief, not merely a way of life or personal preference); Sherbert v. Verner, 374 U.S. 398, 406, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) (to same effect); Weir v. Nix, 114 F.3d 817, 820 (8th Cir.1997) (addressing the RFRA standard based on language similar to that used in FERA); Jolly v. Coughlin, 76 F.3d 468, 476 (2d Cir.1996), abrogated on other grounds by Flores, 521 U.S. at 507, 117 S.Ct. 2157 (same); Cheema v. Thompson, 67 F.3d 883, 885 (9th Cir.1995), abrogated on other grounds by Flores, 521 U.S. at 507, 117 S.Ct. 2157 (same); Goodall ex rel. Goodall v. Stafford County Sch. Bd., 60 F.3d 168, 171 (4th Cir.1995) (same). Once the claimant establishes a religious belief that is sincerely held and substantially burdened, the burden shifts to the state to demonstrate that its action furthers a "compelling governmental interest" and is "[t]he least restrictive means of furthering that compelling governmental interest." A.R.S. § 41-1493.01(C).

¶ 11 In this case, the State conceded all of the elements a defendant must prove to establish a religious exercise defense: that Hardesty held a sincere belief in a true religion and that the law prohibiting possession of marijuana substantially burdened his exercise of religion. As to the State's case, Hardesty conceded during argument on the motion to dismiss that the State had a compelling interest. Accordingly, the only remaining question is whether the State met its burden of proving that the statutory prohibition on the possession of marijuana is the least restrictive means of furthering the government's compelling interest.

2. Question of fact or law

¶ 12 Hardesty contends that, because defenses in criminal cases typically involve fact questions that are presented to and decided by a jury, his religious use defense must also be submitted to a jury. Courts have consistently treated the compelling interest/least restrictive means test as a question of law to be determined by the court and subject to de novo review. See, e.g., United States v. Friday, 525 F.3d 938, 948 (10th Cir.2008) (describing role of "constitutional facts, subject to [the court's] `independent examination'" in First Amendment free exercise analysis, citing Bose Corp. v. Consumers Union, 466 U.S. 485, 499, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984), and Henry P. Monaghan, Constitutional Fact Review, 85 Colum. L.Rev. 229 (1985)), cert. denied, ___ U.S. ___, 129 S.Ct. 1312, 173 L.Ed.2d 595 (2009); see also Hamilton v. Schriro, 74 F.3d 1545, 1552 (8th Cir.1996) (noting that while trial court findings of fact are subject to review under the clearly erroneous standard, the ultimate question of whether one is deprived of a free exercise right is a question of law subject to de novo review); Eng'g Contractors Ass'n of S. Fla. v. Metro. Dade County, 122 F.3d 895, 905 (11th Cir.1997); Contractors Ass'n of E. Pa. v. City of Phila., 91 F.3d 586, 596 (3d Cir.1996); Concrete Works of Colo., Inc. v. City & County of Denver, 36 F.3d 1513, 1522 (10th Cir.1994); In re State-Record Co., 917 F.2d 124, 127 (4th Cir.1990); Scott v. Rosenberg, 702 F.2d 1263, 1274 (9th Cir.1983); Evans v. Romer, 882 P.2d 1335, 1341 (Colo.1994), aff'd, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996); Wadsworth v. State, 275 Mont. 287, 911 P.2d 1165, 1170 (1996); State v. Melin, 428 N.W.2d 227, 229-30 (N.D.1988). Hardesty has made no convincing argument that we should do otherwise and we therefore conclude, as all other courts have done, that whether the government has a compelling interest that is served by the least restrictive means is a question of law for the court to decide.

3. Compelling interest claim

¶ 13 Hardesty urges that Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006), required the trial court to hold an evidentiary hearing to determine whether the State has a compelling interest and can accomplish its compelling interest by less restrictive means.⁷

¶ 14 Hardesty's reliance on O Centro is misplaced. Although the Court there observed that an exemption may be available under RFRA even though the federal Controlled Substances Act broadly prohibits possession of schedule one substances, id. at 433-35, 126 S.Ct. 1211 (noting peyote exception), the Court did not require an evidentiary hearing in every RFRA case, see id. at 418, 126 S.Ct. 1211. Instead, once the government establishes a compelling interest, courts must see whether the religious use can be exempted. Id. at 436, 126 S.Ct. 1211 (citing Cutter v....