PHOENIX — The Arizona State Supreme Court is deciding a case that could affect the state’s medical marijuana laws.
The case, Keenan Reed-Kaliher v. State of Arizona, was brought before the panel of five judges on Tuesday and hinges on whether those on parole or probation should be allowed access to medical marijuana under Arizona’s Medical Marijuana Act.
At the forefront of the case lie arguments over the power of the courts and parole officers to set the conditions of probation or parole, the validity of Arizona’s medical marijuana policy and whether the state’s medical marijuana law should except some, particularly convicted criminals, from access to medicinal marijuana use.
The case stems from 2011, when Cochise County resident Keenan Reed-Kaliher was released from prison as part of a plea deal he accepted in relation to drug charges, for which he spent a year and a half incarcerated.
After being released, Reed-Kaliher obtained a medical marijuana registry identification card from the Arizona Department of Health Services in response to a previous injury, according to his attorney, Tom Holz.
“(Reed-Kaliher) had chronic pain from a fractured hip, he still has pins in his hip and so he got a medical marijuana card while he was on probation,” Holz said.
After becoming a medical marijuana cardholder, Reed-Kaliher was notified by his probation officer in 2013 that he was not allowed to possess or use marijuana for any reason as part of his probation condition. Later that year, Reed-Kaliher filed a motion in court to modify the conditions of his probation to allow his medical marijuana use, Holz said.
Lower courts rejected Reed-Kaliher’s motion while the state’s appeals court ruled in his favor. The case is now before the state’s Supreme Court for review.
In Tuesday’s statements before the Supreme Court, the state argued Reed-Kaliher had accepted a plea agreement and, in that, agreed not to violate any laws — a condition that can become murky when considering the differences between federal and state laws on medical marijuana.
“Probationers are required to obey the law including all federal laws and so there is this tension because clearly under federal law, medical marijuana is not recognized; this is something that’s recognized under state law,” said Arizona Attorney General Mark Brnovich, whose office is arguing the case. “It’s creating a lot of conflict.”
The state argued parolees and probationers are breaking federal law when possessing or consuming medicinal marijuana, and the courts and parole officers who would allow a parolee or probationer to do so would not be fulfilling their oaths in upholding the law.
One portion of the state’s defense was challenged by Chief Justice Scott Bales, who questioned whether Reed-Kaliher’s plea agreement and, therefore, the accepted condition that he not use marijuana, could be accepted, considering Arizona’s medical marijuana law had not yet been adopted by voters until after he made the deal.
Brnovich said cases such as Keenan Reed-Kaliher v. State of Arizona expose the problems associated with medical marijuana laws.
“When you treat something like marijuana as a medicine, not only does it send a mixed message to our children but it makes it hard for the courts to impose terms and conditions of probation,” he said.
Holz, however, said Arizona’s medical marijuana law creates no conflict for state courts or probation officers in enforcing Arizona laws, and the federal government could still arrest his client or any other medical marijuana user in Arizona.
“There’s absolutely no authority for the idea that federal law preempts this,” he said. “We’re not stopping the federal government from enforcing their laws, but they can’t force us to enforce their laws.”
Holz said state courts and probation officers should first follow Arizona’s law, of which the medical marijuana law makes no separation or exception for people on parole or probation.
“(The Arizona Medical Marijuana Act) says a cardholder is not subject to penalty in any manner, so you can’t have your probation revoked (and) you can’t have your parole revoked,” he said.
The court did have some concerns over the arguments raised by Holz during his 20-minute address.
Justice John Pelander raised questions over the juxtaposition of courts and parole officers in Arizona being able to curtail the constitutional rights of convicted criminals — particularly some Fourth Amendment privacy and First Amendment speech rights — but would somehow still not have the authority to curtail rights granted by states, such as access to medical marijuana.
Pelander also questioned whether the voter-approved Arizona Medical Marijuana Act, which does not include exceptions for parolees and probationers, would supersede an earlier state law that bars marijuana use by these groups.
Holz said the court’s decision on the matter could have a broader effect on the state’s medical marijuana law.
“This is a policy experiment you could think of it as, if it turns out that the bad results outweigh the good results then the county attorneys, the anti-marijuana state officials, they’re going to have to take this back to the people and say, ‘This isn’t working, let’s change this, let’s exclude … people on parole and people on probation,'” he said.
“But I think it’s going to work. I think the benefits will outweigh any possible harm that might come from this.”
When asked about his optimism on whether the court would rule in the state’s favor, Brnovich said he no longer makes guesses.
“I think there is some tension, I recognize that, but I also learned a long time ago not to predict what courts are going to do,” he said. “I do think that it’s very fair and reasonable that if someone accepts terms and conditions of probation (that) they abide by the terms and conditions, and furthermore if someone agrees to obey all federal laws (that) they obey federal laws even if it meant that some way they may conflict with some state laws.”
BY MARK REMILLARD, | January 14, 2015 @ 6:34 am