In the Supreme Court of the United States

Transcription

1 NO. In the Supreme Court of the United States STATE OF ARIZONA, Petitioner, v. VALERIE ANN OKUN, Respondent. On Petition for Writ of Certiorari to the Arizona Court of Appeals PETITION FOR WRIT OF CERTIORARI Edward Patrick Feheley Deputy County Attorney Counsel of Record Jon R. Smith Yuma County Attorney Theresa W. Fox Deputy County Attorney Office of the Yuma County Attorney 250 W. 2 nd Street, Suite G Yuma, Arizona (928) edward.feheley@yumacountyaz.gov Counsel for Petitioner Becker Gallagher Cincinnati, OH Washington, D.C

2 i QUESTION PRESENTED Did the Arizona Court of Appeals violate the Supremacy Clause when it ordered the Yuma County Sheriff to deliver marijuana to a person prohibited from possessing marijuana under federal law but authorized to possess marijuana under state law?

3 ii TABLE OF CONTENTS QUESTION PRESENTED... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iv PETITION FOR WRIT OF CERTIORARI... 1 OPINIONS BELOW... 1 JURISDICTION... 1 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED... 1 STATEMENT OF THE CASE... 2 REASONS FOR GRANTING THE PETITION... 4 I. The Applicable Federal Law Is Clearly Established... 4 II. III. IV. The State Law Requires Return of Marijuana... 5 Supremacy Clause Requirements on State Judges... 5 What the State Court Should Have Done... 7 V. How the Court of Appeals Circumvented the Supremacy Clause... 7

4 iii CONCLUSION... 9 APPENDIX Appendix A: Appendix B: Appendix C: Order Denying Review in the Supreme Court for the State of Arizona (Filed July 8, 2013)... App. 1 Opinion in the Court of Appeals for the State of Arizona, Division 1 (Filed January 10, 2013)... App. 3 Order in the Superior Court of the State of Arizona in and for the County of Yuma (Filed January 26, 2012).. App. 15

5 iv TABLE OF AUTHORITIES CASES Fidelity Federal Sav. and Loan Ass n v. de la Cuesta, 458 U.S. 141 (1982)... 7 Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963)... 6, 7 Gonzales v. Raich, 545 U.S. 1 (2005)... 5 Lee v. State of Fla., 392 U.S. 378, 88 S.Ct (U.S. Fla. 1968)... 9 PLIVA, Inc. v. Mensing, 131 S. Ct (2011)... 7 Printz v. U.S., 521 U.S. 898 (1997)... 5 Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978)... 6 U.S. v. Oakland Cannabis Buyers Co-op, 532 U.S. 483 (2001)... 5 Wyeth v. Levine, 555 U.S. 555 (2009)... 7 CONSTITUTION U.S. Const. art. III... 4

6 v U.S. Const. art. VI, cl. 2 (Supremacy Clause)... passim U.S. Const. art. VI, cl. 3 (Oath)... 9 STATUTES The Controlled Substances Act, 21 U.S.C. 801 et seq.... 4, 5, 7, 8 21 U.S.C. 812(a)(1) U.S.C. 812(b)(1)(B) U.S.C. 812(c) U.S.C. 823(f) U.S.C U.S.C. 841(a)(1) U.S.C. 844(a) U.S.C. 885(d)... 3, 7 28 U.S.C. 1257(a)... 1 Arizona Medical Marijuana Act (AMMA), A.R.S , et seq.... 2, 5, 8 A.R.S (8)... 2 A.R.S (15)... 2

7 vi RULE Sup. Ct. R. 16(1)... 9

8 1 PETITION FOR WRIT OF CERTIORARI Petitioner Yuma County (State) respectfully requests that this Court grant the petition for a Writ of Certiorari to review the decision of the Arizona Court of Appeals. OPINIONS BELOW The Arizona Court of Appeals decision is reported at 296 P.3d 998 (Ariz. App. 2013). App. 3. The Arizona Supreme Court s denial of the County s Petition for Review is unpublished. App. 1. The decision of the Yuma County Superior Court is unpublished. App. 15. JURISDICTION The Arizona Court of Appeals issued its Opinion on January 10, App. 3. Yuma County filed a timely Petition for Review which the Arizona Supreme Court denied on July 8, App. 1. This Court has jurisdiction over this petition for certiorari under 28 U.S.C. 1257(a). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED Article VI, Clause 2 of the United States Constitution: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the

9 2 Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. STATEMENT OF THE CASE In November 2010, Arizona voters passed Proposition 203, Arizona Medical Marijuana Act (AMMA), codified in Title 36, Chapter 28.1, A.R.S , et seq. The AMMA gives some people limited protection from prosecution by the State. App. 6. On January 28, 2011, Federal authorities stopped Valerie Okun (Okun) at a Border Patrol checkpoint in Yuma County, and found hashish and marijuana (pursuant to the AMMA s definition of marijuana, A.R.S (8) and (15), Okun s hashish and marijuana are hereafter referred collectively as marijuana ). App. 16. The marijuana was turned over to the Yuma County Sheriff as evidence of a possible crime. App. 16. The State filed drug charges against Okun, but dismissed them after she produced proof that she is authorized to possess marijuana under California s Medical Marijuana Program, which entitles Okun to possess the marijuana under AMMA. App. 16. After the charges were dropped, the superior court granted Okun s request for the return of the marijuana. After the order was issued, the Yuma County Sheriff refused to return the marijuana to Okun. App. 16.

10 3 On request by the superior court, the State and Okun submitted briefs on whether the court could direct the Sheriff to return the marijuana to Okun. App. 16. The court then ordered the Sheriff to return the marijuana. The order found that state law compelled the return of marijuana, and that the Sheriff is probably immune pursuant to 21 U.S.C. 885(d). App. 15. The Arizona Court of Appeals affirmed the superior court s order requiring the Sheriff to return the marijuana to Okun. The court of appeals declared that Arizona law requires the return of marijuana to Okun, and that the Sheriff is immune pursuant to 21 U.S.C. 885(d) from federal prosecution if complying with the court s order to return the marijuana. App. 4. The court of appeals declared that their only concern is whether Arizona law required the Sheriff to comply with the superior court s order to return to Okun the marijuana that authorities seized from her at the Border Patrol checkpoint. App. 14. The court of appeals declined to address the State s argument that the court s order to return marijuana to Okun is ordering a violation of federal law. App The State petitioned for Arizona Supreme Court review; the petition was denied. App. 1.

11 4 REASONS FOR GRANTING THE PETITION An Arizona state judge issued, and the court of appeals affirmed, an order directing the Yuma County Sheriff to violate a clearly established federal law. Pursuant to Article III and Article VI, clause 2, of the United States Constitution, this Court should exercise its supervisory power and direct the state judge to follow federal law. I. The Applicable Federal Law Is Clearly Established The Controlled Substances Act, 21 U.S.C. 801 et seq., makes it unlawful to possess, manufacture, distribute or dispense any controlled substance except in a manner authorized by the Controlled Substances Act. 21 U.S.C. 841(a)(1), 844(a). The Controlled Substances Act provides that [e]xcept as authorized by this title, it shall be unlawful for any person knowingly or intentionally - - (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance. 21 U.S.C. 812(a)(1). Simple possession of marijuana is a crime. 21 U.S.C. 844(a). Marijuana is classified as a Schedule I drug and has no approved use worthy of an exception outside the confines of a U.S. Government-approved research project. 21 U.S.C. 841(a)(1), 812(b)(1)(B), 812(c), 823(f). Whereas some other controlled substances can be dispensed and prescribed for medical use, 21 U.S.C. 829, the same is not true for marijuana.

12 5 The federal government has not recognized a legitimate medical use for marijuana and there is no exception for medical marijuana distribution or possession under the Controlled Substances Act. Gonzales v. Raich, 545 U.S. 1, (2005). [M]arijuana has no medical benefits worthy of an exception thus it has been held that there is no medical necessity defense available for charges under the Controlled Substances Act. U.S. v. Oakland Cannabis Buyers Co-op, 532 U.S. 483, 491 (2001). The possession of marijuana, even when possessed in accordance with a state s medical marijuana law, is prohibited by federal law. Gonzales v. Raich, 545 U.S. 1 (2005). The trial court s order requires the Sheriff to deliver marijuana to Okun. App. 15. Both the delivery by the Sheriff and the possession by Okun are violations of a clearly established federal law. II. The State Law Requires Return of Marijuana The AMMA, as interpreted by the court of appeals, requires the return of marijuana to Okun. But having made that finding, a state judge cannot move forward with a blind eye to a federal law that bars an order directing the Sheriff to return marijuana to Okun. III. Supremacy Clause Requirements on State Judges State courts, unlike the state legislatures and state executives, are bound to follow federal law. Printz v. U.S., 521 U.S. 898, 907 (1997). The source of the

13 6 obligation is the United States Constitution, Article VI, clause 2, which provides that: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. [emphasis added] Pursuant to this Constitutional provision, the U.S. Supreme Court has stated that state law is preempted when it is impossible to comply with both state law and federal law. Even if Congress has not completely foreclosed state legislation in a particular area, a state statute is void to the extent that it actually conflicts with a valid federal statute. A conflict will be found where compliance with both federal and state regulations is a physical impossibility... Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, (1963). Ray v. Atlantic Richfield Co., 435 U.S. 151, 158 (1978). Even where Congress has not completely displaced state regulation in a specific area, state law is nullified to the extent that it actually conflicts with federal law. Such a conflict arises when compliance with both

14 7 federal and state regulations is a physical impossibility. Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, (1963). Fidelity Federal Sav. and Loan Ass n v. de la Cuesta, 458 U.S. 141, 153 (1982). In the instant case, the court of appeals interpreted the laws of Arizona to require the Sheriff to deliver marijuana to Okun. However, where state and federal law directly conflict state law must give way. PLIVA, Inc. v. Mensing, 131 S. Ct. 2567, 2577 (2011); see also Wyeth v. Levine, 555 U.S. 555 (2009). IV. What the State Court Should Have Done Because the trial court s order requires unequivocal violations of the Controlled Substances Act, the order is in direct conflict with federal law. The court of appeals should have resolved the conflict in favor of federal law, as required by Article VI, clause 2, of the United States Constitution. V. How the Court of Appeals Circumvented the Supremacy Clause The court determined it could ignore federal law. First, the court of appeals interpreted 21 U.S.C. 885(d) and declared that the Sheriff is immune from federal prosecution if the Sheriff complies with the court order to return marijuana to Okun. App While the purpose of this holding is to declare that the Sheriff has no stake in the matter, the holding makes it clear that the court understood it was ordering the Sheriff to violate federal law.

15 8 Second, addressing the natural result of returning marijuana illegal delivery by the Sheriff and illegal possession by Okun the court dismissed any review of the argument that Okun s possession of marijuana violates federal law. App The court did not dispute that Okun s possession of marijuana is a federal crime, but instead gave five reasons why it did not care. The reasons stated were: 1. the absence of any actual or threatened prosecution of Okun under federal law, App. 12; 2. the immunity that federal law affords the Sheriff for complying with the marijuana return order, App. 12; 3. the State s lack of standing to argue that federal law prohibits Okun from possessing the marijuana, App. 12; 4. the Sheriff s lack of a personal stake in whether the Controlled Substances Act might invalidate Okun s right under the AMMA, App. 13; and 5. that Okun s marijuana possession is not a controversy before the court because the federal government had not charged Okun with any crime, App. 13. In the end, after declaring that Arizona law required the return of marijuana to Okun, the only justification the court of appeals gave for issuing an order in violation of federal law was that the Sheriff could not be prosecuted and no one should care

16 9 whether Okun would violate federal law as a result of the court s order. The published opinion of the court of appeals reflects a conscious disregard for clearly established federal law, and disrespect to the Supremacy Clause. Under our Constitution no court, state or federal, may serve as an accomplice in the willful transgression of the Laws of the United States, laws by which the Judges in every State (are) bound * * *. FN10 Lee v. State of Fla., 392 U.S. 378, 386, 88 S.Ct. 2096, 2101 (U.S. Fla. 1968). The behavior of the court of appeals may stem from the court s misconception about a state judge s Supremacy Clause obligation. In footnote 4 of the court of appeals opinion, the court announces surprise to the State s claim that state judges, unlike state legislators and state executive, are bound to follow federal law. App. 12. The fact is that while state legislators, executive and judges are all bound to take an oath to the Constitution, only state judges are bound to follow federal law. Clause 3 (Oath) versus Clause 2 (Supremacy), U.S. Constitution, Article VI. CONCLUSION For the foregoing reasons, the petition for Writ of Certiorari should be granted and the decision of the court of appeals should be reversed. Because the decision of the court of appeals is a violation of the Supremacy Clause on its face, this case is appropriate for Rule 16(1) Summary Disposition.

17 10 Respectfully Submitted, Edward Patrick Feheley Deputy County Attorney Counsel of Record Jon R. Smith Yuma County Attorney Theresa W. Fox Deputy County Attorney Office of the Yuma County Attorney 250 W. 2 nd Street, Suite G Yuma, Arizona (928) edward.feheley@yumacountyaz.gov Counsel for Petitioner

18 APPENDIX

19 i APPENDIX TABLE OF CONTENTS Appendix A: Appendix B: Appendix C: Order Denying Review in the Supreme Court for the State of Arizona (Filed July 8, 2013)... App. 1 Opinion in the Court of Appeals for the State of Arizona, Division 1 (Filed January 10, 2013)... App. 3 Order in the Superior Court of the State of Arizona in and for the County of Yuma (Filed January 26, 2012).. App. 15

20 App. 1 APPENDIX A SUPREME COURT STATE OF ARIZONA Arizona Supreme Court No. CV PR Court of Appeals Division One No. 1 CA-CV Yuma County Superior Court No. CR [Filed July 8, 2013] STATE OF ARIZONA, ) ) Plaintiff/Appellant, ) ) v. ) ) VALERIE ANN OKUN, ) ) Defendant/Appellee. ) ) GREETINGS: The following action was taken by the Supreme Court of the State of Arizona on July 8, 2013, in regard to the above-referenced cause: ORDERED: Petition for Review = DENIED.

21 App. 2 There is no record to return. Janet Johnson, Clerk TO: Edward P Feheley Theresa W Fox Michael J Donovan Elizabeth B Ortiz Benjamin D Kreutzberg Sheila Sullivan Polk Ruth Willingham kh

22 App. 3 APPENDIX B In the Court of Appeals State of Arizona Division 1 No. 1 CA CV Department E [Filed January 10, 2013] STATE of Arizona, ) ) Plaintiff/Appellant, ) ) v. ) ) Valerie Ann OKUN, ) ) Defendant/Appellee. ) ) OPINION Appeal from the Superior Court in Yuma County Cause No. S1400CR The Honorable Lisa W. Bleich, Judge Pro Tempore AFFIRMED

23 App. 4 Jon R. Smith, Yuma County Attorney By Edward P. Feheley, Deputy County Attorney, Theresa W. Fox, Deputy County Attorney, Attorneys for Appellant. Donovan Law, PLLC By Michael J. Donovan, Yuma, Attorneys for Appellee. JOHNSEN, Judge. OPINION 1 Authorities stopped Valerie Okun entering Arizona near Yuma and seized marijuana and other contraband from her car. The State filed drug charges against Okun, but dismissed them after she produced proof she is permitted to possess marijuana for medical purposes under the Arizona Medical Marijuana Act. After the charges were dropped, the superior court granted Okun s request for the return of the marijuana. In this appeal from that order, the State argues Arizona law requires forfeiture of any marijuana seized by law enforcement and also contends the Yuma County Sheriff cannot return the marijuana to Okun without risk of violating the federal Controlled Substances Act. We affirm the superior court s order requiring the Sheriff to return the marijuana to Okun. Because Arizona law allows Okun to possess the marijuana, it is not subject to forfeiture under state law. Moreover, the Sheriff is immune from prosecution under the federal law for acts taken in compliance with a court order.

24 App. 5 FACTS AND PROCEDURAL BACKGROUND 2 Authorities stopped Okun s car at a Border Patrol checkpoint and found marijuana. State drug charges against her were dismissed, however, after she showed she is authorized to possess the drug under California s Medical Marijuana Program, and thereby may possess the drug under Arizona s Medical Marijuana Act. See Ariz. Rev. Stat. ( A.R.S. ) (17) (West 2013) (defining visiting qualifying patient ), (C) (West 2013) (visiting qualifying patients authorized under laws of other states also entitled to legally possess medicinal marijuana in Arizona); Cal. Health & Safety Code (West 2013). 1 3 At Okun s request and without opposition from the State, the superior court then ordered the return of the seized material. After the order issued, however, the Yuma County Sheriff refused to return the marijuana to Okun. Okun filed a motion for order to show cause, which the court granted over the State s objection. The State s timely appeal followed. We have jurisdiction pursuant to A.R.S (A)(1) (West 2013) and 2101(A)(1) (West 2013). 1 Absent material revisions after the relevant date, we cite a statute s current version.

25 App. 6 DISCUSSION A. The Arizona Medical Marijuana Act. 4 The Arizona Medical Marijuana Act ( AMMA ), passed by voters in 2010, added a chapter to Title 36 that establishes conditions allowing medicinal use of marijuana. Initiative Measure, Prop. 203 (approved by election Nov. 2, 2010, eff. Dec. 4, 2010). As described by the Arizona Legislative Council s ballot measure analysis, the purpose of th[e] act was to protect patients with debilitating medical conditions, as well as their physicians and providers, from arrest and prosecution, criminal and other penalties and property forfeiture if such patients engage in the medical use of marijuana. Ariz. Sec y of State, Ariz. Ballot Prop. Guide, Gen. Election Nov. 2, , available at sh/prop203.pdf. 5 The AMMA allows a patient with a debilitating medical condition to obtain a registration identification card that permits possession and use of marijuana for medicinal purposes. A.R.S (9), (13), (14), (West 2013). Section (B)(1) (West 2013) protects registered qualifying patients who possess an allowable amount of marijuana from arrest, prosecution or penalty in any manner, or denial of any right or privilege, including any civil penalty or disciplinary action by a court. See A.R.S (1) (defining allowable amount ). Additionally, visiting qualifying patients holding equivalent identification cards issued under the laws of another state have the same protection. A.R.S (17), (C). The State does not dispute that Okun possesses a valid

26 App. 7 California-issued identification card that permits her to possess an allowable amount of marijuana in Arizona. 2 B. Okun s Property Was Not Summarily Forfeited Pursuant to A.R.S (C). 6 The State first argues the superior court erred in ordering the Sheriff to return the marijuana to Okun because the drug is subject to summary forfeiture under A.R.S (C) (West 2013). In relevant part, (C) provides that marijuana seized in connection with any violation of this chapter or which come[s] into the possession of a law enforcement agency [is] summarily forfeited. We review de novo the superior court s interpretation of a statute. TDB Tucson Group, L.L.C. v. City of Tucson, 228 Ariz. 120, 123, 6, 263 P.3d 669, 672 (App. 2011); State v. Givens, 206 Ariz. 186, 187, 2, 76 P.3d 457, 458 (App. 2003). 7 We conclude (C) does not compel the summary forfeiture of the marijuana seized from Okun. Addressing first the initial clause of the provision the State cites, law enforcement authorities did not seize the drug from Okun in connection with a drug offense under Arizona law. As noted, the State does not dispute that Okun has a state-law right to possess the drug. Cf. United States v. 608 Taylor Ave., 584 F.2d 1297, (3d Cir.1978) (motion for return of property 2 Officers at the Border Patrol checkpoint also seized hashish and drug paraphernalia from Okun; the superior court ordered the Sheriff to return those items to Okun, too. On appeal, the State does not argue Okun lacked a state-law right to possess the hashish and paraphernalia.

27 App. 8 should be granted once criminal proceedings have ended). 8 Nor may the State properly rely on the second clause of (C), which allows summary forfeiture of any marijuana that comes into the possession of a law enforcement agency. Other subsections of allow the State to bring civil forfeiture proceedings with respect to items such as money, books and equipment when they are used in a chapter 34 drug offense. In contrast, the items enumerated in subsection (C) [p]eyote, dangerous drugs, prescription-only drugs, marijuana, narcotic drugs and plants from which such drugs may be derived are summarily forfeited because the mere possession of such items constitutes a criminal offense. See A.R.S to 3408 (West 2013). 9 In approving the AMMA, however, Arizona voters decided that a qualified patient does not commit a criminal offense by possessing an allowable amount of marijuana. Consistent with that voter-approved directive, the AMMA mandates that marijuana may not be seized or forfeited from a qualifying patient. Specifically, (G) states that [p]roperty, including all interests in the property, otherwise subject to forfeiture under title 13, chapter 39, that is possessed, owned or used in connection with the medical use of marijuana... is not subject to seizure or forfeiture. (Emphasis added). This specific and more recent provision exempting medical marijuana from seizure or forfeiture controls over the more general provision in the forfeiture statute upon which the State relies. See In re Guardianship/Conservatorship of Denton, 190 Ariz. 152, 157, 945 P.2d 1283, 1288 (1997)

28 App. 9 ( [W]hen there is conflict between two statutes, the more recent, specific statute governs over the older, more general statute. ) (quotation omitted). 10 The State argues that because subpart (G) of refers to property otherwise subject to civil forfeiture proceedings pursuant to A.R.S et. seq., it does not bar summary forfeiture of seized marijuana pursuant to A.R.S (C). In support of this argument, the State points out that Oregon s medical marijuana statute expressly provides that marijuana seized from a qualifying patient must be returned to the patient once it is determined that the patient qualifies for protection. Or. Rev. Stat (2) (West 2013). The State argues that the AMMA s omission of an express mandate for the return of marijuana seized from a qualifying patient demonstrates the drafters intent that authorities need not return the marijuana because it has been summarily forfeited pursuant to A.R.S (C). 11 We cannot accept the State s interpretation of the statutes. The AMMA prohibits the imposition of a penalty in any manner on a qualified patient possessing an allowable amount of marijuana. A.R.S (B)(1). The State s assertion that even though (G) prohibits civil forfeiture proceedings against a qualified patient possessing an allowable amount of marijuana, authorities still may summarily seize that same marijuana pursuant to (C) flies in the face of any reasonable interpretation of the statute. Because we must respect the voter-approved statutory mandate that a qualified patient cannot suffer a penalty for possessing an allowable amount of marijuana, we reject the State s

29 App. 10 argument that marijuana seized from a qualified patient is subject to summary forfeiture pursuant to (C). C. The Sheriff Is Immune from Federal Prosecution For Complying with the Superior Court Order. 12 The State further argues the superior court s order is erroneous because it subjects the Sheriff to prosecution as a transferor of marijuana under the federal Controlled Substances Act. See 21 U.S.C. 841(a)(1) (West 2013) (unlawful to distribute[ ] or dispense a controlled substance). 13 As Okun points out, however, federal law immunizes a law enforcement official from liability under circumstances such as these. Title 21, section 885(d) of the United States Code is titled Immunity of Federal, State, local and other officials and provides that, with exceptions not relevant here, no civil or criminal liability shall be imposed by virtue of this subchapter... upon any duly authorized officer of any State, territory, political subdivision thereof... who shall be lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances. 21 U.S.C. 885(d). This provision immunizes law enforcement officers such as the Sheriff from any would-be federal prosecution for complying with a court order to return Okun s marijuana to her. See City of Garden Grove v. Superior Court, 157 Cal. App. 4th 355, 68 Cal. Rptr. 3d 656, 681 (2007) (federal immunity protects law enforcement from liability for complying with order requiring return of marijuana

30 App. 11 seized from medical marijuana user); State v. Kama, 178 Or. App. 561, 39 P.3d 866, 868 (2002) (same). 14 The State acknowledges the immunity provision, but argues the superior court s observation that it is unlikely that the Sheriff would be prosecuted under the federal law impliedly leaves open the chance of a prosecution. As we have said, the construction of a statute is a matter we review de novo. Our conclusion that federal law immunizes the Sheriff for complying with a court order to return seized property disposes of his contention to the contrary. 3 D. Federal Law Treatment of Possession by a Medical Marijuana User. 15 Finally, the State contends the superior court erred by ordering the return of Okun s marijuana because Okun s possession of it would constitute a federal crime. See 21 U.S.C. 844(a) (West 2013). In summary fashion, the State argues state law is preempted when it is impossible to comply with both state law and federal law and the return order is in direct conflict with federal law. 3 Contrary to the State s argument, the court order requiring the Sheriff to return the marijuana to Okun will not render the Sheriff subject to prosecution for transferring marijuana pursuant to A.R.S (A)(4) (West 2013). See Acevedo v. Pima County Adult Prob. Dep t, 142 Ariz. 319, , 690 P.2d 38, (1984) ( Those officers, employees, and agents who assist the court in the judicial process are also entitled to absolute immunity. ); Adams v. State, 185 Ariz. 440, 444, 916 P.2d 1156, 1160 (App. 1995) ( nonjudicial personnel are entitled to immunity when carrying out court directive ) (quotation omitted).

31 App On the facts presented here, we decline to address the State s suggestion that the Controlled Substances Act preempts and thereby invalidates the AMMA. We do not question the general proposition that when federal law actually conflicts with state law, federal law controls. See, e.g., E. Vanguard Forex, Ltd. v. Ariz. Corp. Comm n, 206 Ariz. 399, 405, 18, 79 P.3d 86, 92 (App. 2003). 4 But several principles restrain us from deciding in this case whether federal law preempts the AMMA. 17 In the absence of any actual or threatened prosecution of Okun under federal law, and given the immunity that federal law affords the Sheriff for complying with the return order, the question is not ripe. See Thomas v. Anchorage Equal Rights Comm n, 220 F.3d 1134, 1137 (9th Cir.2000) (if no enforcement action or prosecution is threatened or imminent, the dispute is premature). By the same token, on the facts of this case, the State lacks standing to argue that federal law prohibits Okun from possessing the marijuana. Although Arizona s constitution does not contain a case or controversy requirement, a party must demonstrate a distinct and palpable injury caused by the complained-of conduct. Karbal v. Ariz. Dep t of Revenue, 215 Ariz. 114, 116, 7, 158 P.3d 243, 4 The State s brief asserts, State courts, unlike the state legislatures and state executives, are bound to follow federal law. We do not understand the authority the State cites for that proposition, Printz v. United States, 521 U.S. 898, 907, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997), to mean that the Supremacy Clause of the United States Constitution does not also bind state legislatures and state executives.

32 App (App. 2007). Here, in the language of Karbal, the Sheriff has no personal stake in whether the federal Controlled Substances Act might invalidate Okun s right under the AMMA to possess an allowable amount of marijuana. See id. The requirement of standing is consistent with notions of judicial restraint and ensures that courts refrain from issuing advisory opinions, that cases be ripe for decision and not moot, and that issues be fully developed between true adversaries. Bennett v. Brownlow, 211 Ariz. 193, 196, 16, 119 P.3d 460, 463 (2005); see also County of San Diego v. San Diego NORML, 165 Cal. App. 4th 798, 81 Cal. Rptr. 3d 461, (2008) (county has no standing to raise hypothetical constitutional infirmities of a statute when statute did not cause it injury). 18 Whether Okun s possession of marijuana may subject her to federal prosecution despite her state-law right to possess it is not a controversy before this court because the federal government has not charged Okun with any crime. Nor does public policy require us to decide the abstract issue the State presents. Cf. City of Garden Grove, 68 Cal. Rptr. 3d. at (deciding for reasons of public policy to address preemption question, and holding federal Controlled Substances Act did not preempt California medical marijuana law). 19 Moreover, the State s brief fails to provide any meaningful discussion about federal preemption, the Supremacy Clause, legislative intent and how those complex principles might apply in this context. See State v. Moody, 208 Ariz. 424, 452, 101 n. 9, 94 P.3d 1119, 1147 (2004) (opening brief must present significant arguments supported by authority, otherwise the party abandons and waives the claim)

33 App. 14 (quoting State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989)). 20 On the facts presented, our only concern is whether Arizona law requires the Sheriff to comply with the superior court s order to return to Okun the marijuana that authorities seized from her at the Border Patrol checkpoint. Pursuant to A.R.S (B) and (G), the superior court correctly ordered the Sheriff to return the marijuana. CONCLUSION 21 For the foregoing reasons, we affirm the superior court s order. DIANE M. JOHNSEN, Acting Presiding Judge CONCURRING: JON W. THOMPSON, Judge and KENTON D. JONES, Judge. * * Pursuant to Article VI, Section 3 of the Arizona Constitution, the Arizona Supreme Court designated the Honorable Kenton Jones, Judge of the Arizona Superior Court, to sit in this matter.

34 App. 15 APPENDIX C IN THE SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF YUMA Case No. S1400CR [Filed January 26, 2012] State of Arizona, ) ) Petitioner, ) ) v. ) ) Valerie Ann Okun, ) ) Respendent. ) ) ORDER (Previously under advisement) This matter came before the Court on Defendant s Motion for Order to Show Cause, Defendant s Memorandum Re: Order to Show Cause and Return of Property, and Plaintiff s Memorandums Re: Order to Show Cause and Return of Property. This Court has reviewed the pleadings and arguments of counsel.

35 App. 16 Facts: On January 28, 2011, the Defendant was stopped at a Border Patrol checkpoint within Yuma County. During a search of the vehicle, hashish, marijuana, and drug paraphernalia were found. All of these items belonged to the Defendant and the Defendant had a valid medical marijuana card. The case was dismissed on May 20, On August 15, 2011 the defendant filed a motion for return of the property. Judge Gould signed an order releasing the defendant s property on August 17, The Sheriff then refused to return the property and the defendant filed a motion for order to show cause. Judge Gould then instructed counsel to submit memorandum on the issues below. The first issue presented is whether any federal law or regulation pre-empts this State Court from ordering return of the subject evidence from the U.S. Drug Enforcement Administration. The Plaintiff s arguments also included why state law prohibits return of Defendant s marijuana and those arguments are addressed below. The Federal Controlled Substance Act prohibits a person from knowingly or intentionally possessing marijuana. 21 U.S.C.A 801. It further states that, No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together. 21 U.S.C.A 903.

36 App. 17 The express language of the Act itself indicates that Congress did not intend to trample on the rights of the States to make their own laws pertaining to illegal drugs and medical marijuana use. It further implies that State laws pertaining to medical marijuana use can co-exist with Federal law without conflict. A.R.S , known as the Arizona Medical Marijuana Act, allows a valid medical marijuana card holder to possess marijuana under certain statutory criteria. Therefore, a valid card holder who possesses an allowable amount of marijuana under the statue is in legal possession of the marijuana. The statute does not specifically address the issue of whether a valid medical marijuana card holder is entitled to return of the marijuana after criminal charges are dismissed. The Plaintiff argues that A.R.S (C) requires the destruction of the marijuana and hashish in this case. That statute states in relevant part,...marijuana, narcotic drugs...which are seized in connection with any violation of this chapter or which come into the possession of a law enforcement agency are summarily forfeited. (Emphasis added.) The Court cannot find that the marijuana seized in this case was connected with any violation of chapter 34 of the Criminal Code. The case was dismissed because the defendant was in legal possession of the marijuana under Arizona Law. Additionally, the Court cannot find that the catch all language in the statute bolded in the above paragraph was meant to include marijuana that was legally possessed.

37 App. 18 The Plaintiff next argues that A.R.S (G) fails to speak to the disposal of seized drugs. That portion of the Arizona Medical Marijuana Act prohibits civil forfeiture of property that is possessed in connection with the medical use of marijuana. The Plaintiff argues that the absence in that portion of the statute of any language addressing marijuana seized in a criminal context means the marijuana is forfeited. The Court does not find that argument to be persuasive. A reading of A.R.S in its entirety supports the argument that the defendant is entitled to a return of her marijuana. Paragraph B of the statute provides in relevant part, A registered qualifying patient or registered designated caregiver 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... Paragraph B, along with paragraph G, support the position that a qualified patient should not be penalized in any way and that would include forfeiture of her legally possessed marijuana. The Plaintiff further argues that both state and federal law pre-empt this Court from ordering return of the evidence. As to state law, Plaintiff argues that the Arizona Medical Marijuana Act does not authorize the Yuma County Sheriff or this Court to transfer the marijuana back to the defendant because neither the Sheriff nor the Court is considered a nonprofit medical marijuana dispensary or registered designated caregiver. The Court finds this argument lacks merit. The Sheriff is being ordered to return property to the legal possessor. The Sheriff could not be found to be

38 App. 19 providing marijuana to the defendant in the same context. As to Plaintiff s argument that the Sheriff would be violating federal law,... it would stand to reason that the only way a police officer could be found in violation of 21 U.S.C. 841(a)(1) for distributing a controlled substance is if he or she intended to act as a drug peddler rather than a law enforcement official. City of Garden Grove v. The Superior Court of Orange County, 157 Cal. App. 4 th 390 (2007). As a practical matter, moreover, it seems exceedingly unlikely that federal prosecutors would ever attempt to haul a local constable into federal court for complying with a state judicial order calling for the return of a qualified patient s medical marijuana (Id. at 390). In City of Garden Grove v. The Superior Court of Orange County, 157 Cal. App. 4 th 390 (2007), the defendant was stopped for a traffic violation and was found to be in possession of less than an ounce of marijuana. The defendant contested the drug charge because he was in legal possession in accordance with California State law (Compassionate Use Act). The State dismissed the drug charge and the defendant filed a petition for return of his marijuana. The trial court ordered the police department to return the marijuana to the defendant. The City appealed arguing that the federal law preempts state law and that returning the marijuana would be a violation of federal law. The Court of Appeals held that the federal drug laws do not supersede or preempt the defendant s right to return of his property and therefore the City s petition was denied.

39 App. 20 In discussing the state law that gives qualified patients the right to possess marijuana, the Court stated as follows, But if the City prevails, the police could thwart that objective by withholding marijuana they have seized from qualified patients, even when the patient is no longer subject to state criminal prosecution. (Id. at 664.) In City of Garden Grove v. The Superior Court of Orange County, 157 Cal. App. 4 th 355 (2007), the Court also stated that, even though the state law is silent as to whether a qualified patient is entitled to the return of his marijuana once criminal charges against him have been dismissed, due process principles seem to us to compel that result. The Court went on to say that the defendant had a right to possession of the marijuana and that right...is grounded, at bottom, on fairness principles embodied in the due process clause. (Id. at 682). The Fourteenth Amendment to the United States Constitution provides that not state shall deprive any person of life liberty, or property without due process of law. (U.S. Const., 14 th Amend., 1). The second issue presented is whether the Court has the authority to direct the Sheriff to appear and show cause in a case that was dismissed by order filed May 20, Does dismissal of the case in effect mean there is no case and therefore no longer jurisdiction by the Court? The Court has not been provided with any authority that would prevent the Court from granting the motion for return of property and issuing an order to show cause if the Sheriff fails to comply. In Allvene v. United States 445 A.2 nd 887 (1983), the Court found that the Superior Court had jurisdiction to

40 App. 21 decide criminal defendant s motions for return of property when the case is disposed of by nolle prosequi. The Court reasoned that the existence of civil remedies did not divest the court of jurisdiction nor preclude the court from ruling on the criminal defendant s motion. In Moore v. State of Florida, 533 So.2d 924 (1988), the Court found that the trial Court s inherent power to direct return of property seized from criminal defendant after it is no longer needed against him exists after underlying criminal case has been terminated; a separate civil action is unnecessary. (Id. at 925.) In State of Arizona v. Salerno, 216 Ariz. 22 (2007), the defendant filed a motion for release of seized property in his criminal case after the case had been dismissed by the State. The trial Court denied his motion and Salerno filed another motion for release of his seized property. The trial Court again denied Salerno s motion and directed Salerno to proceed under the forfeiture statutes. Salerno did not proceed under the forfeiture statutes. Instead, he filed another motion with the Court in the criminal case. The Court denied the motion and Salerno appealed. The appellate court found they had jurisdiction based on the trial Court ruling solely on a motion for return of property which resulted in a final appealable order. The trial Court was required to consider defendant s claims for return of property on remand. BASED ON THE FOREGOING, THE COURT FINDS AS FOLLOWS:

41 App That Ms. Okun was in legal possession of her marijuana according to Arizona State law. 2. That the Arizona Medical Marijuana Act is not in conflict with the Federal Law. 3. That this Court has jurisdiction to grant the motion for return of property. 4. That Ms. Okun is entitled to return of her marijuana and other property. IT IS ORDERED that the Sheriff of Yuma County shall immediately return Ms. Okun s property. ORDERED this 26 th day of January Lisa W. Bleich Superior Court Commissioner