In the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United States

STATE OF ARIZONA,Petitioner,

v.

VALERIE ANN OKUN, Respondent.

On Petition for Writ of Certiorari to theArizona Court of Appeals

PETITION FOR WRIT OF CERTIORARI

Edward Patrick FeheleyDeputy County Attorney Counsel of RecordJon R. SmithYuma County AttorneyTheresa W. FoxDeputy County AttorneyOffice of the Yuma County Attorney250 W. 2nd Street, Suite GYuma, Arizona 85364(928) 817-4300edward.feheley@yumacountyaz.gov

Counsel for Petitioner

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

NO.

i

QUESTION PRESENTED

Did the Arizona Court of Appeals violate theSupremacy Clause when it ordered the Yuma CountySheriff to deliver marijuana to a person prohibited frompossessing marijuana under federal law but authorizedto possess marijuana under state law?

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 STATUTORYPROVISIONS INVOLVED . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 2

REASONS FOR GRANTING THE PETITION . . . . 4

I. The Applicable Federal Law Is ClearlyEstablished . . . . . . . . . . . . . . . . . . . . . . . . 4

II. The State Law Requires Return ofMarijuana . . . . . . . . . . . . . . . . . . . . . . . . . 5

III. Supremacy Clause Requirements on StateJudges . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

IV. What the State Court Should Have Done . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

V. How the Court of Appeals Circumvented

the Supremacy Clause . . . . . . . . . . . . . . . 7

iii

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

APPENDIX

Appendix A: Order Denying Review in theSupreme Court for the State ofArizona(Filed July 8, 2013) . . . . . . . App. 1

Appendix B: Opinion in the Court of Appealsfor the State of Arizona, Division1(Filed January 10, 2013) . . . App. 3

Appendix C: Order in the Superior Court of theState of Arizona in and for theCounty of Yuma(Filed January 26, 2012) . . App. 15

iv

TABLE OF AUTHORITIES

CASES

Fidelity Federal Sav. and Loan Ass’n v. de laCuesta, 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. 2096 (U.S. Fla. 1968) . . . 9

PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (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

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) . . . . . . . . . . . . . . . . . . . . . . . . . 4

21 U.S.C. § 812(b)(1)(B) . . . . . . . . . . . . . . . . . . . . . . 4

21 U.S.C. § 812(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

21 U.S.C. § 823(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

21 U.S.C. § 829 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

21 U.S.C. § 841(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 4

21 U.S.C. § 844(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

21 U.S.C. § 885(d) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7

28 U.S.C. § 1257(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Arizona Medical Marijuana Act (AMMA), A.R.S. §§ 36-2801, et seq. . . . . . . . . . . . . . . 2, 5, 8

A.R.S. § 36-2801(8) . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A.R.S. § 36-2801(15) . . . . . . . . . . . . . . . . . . . . . . . . . 2

vi

RULE

Sup. Ct. R. 16(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

1

PETITION FOR WRIT OF CERTIORARI

Petitioner Yuma County (State) respectfullyrequests that this Court grant the petition for a Writ ofCertiorari to review the decision of the Arizona Courtof Appeals.

OPINIONS BELOW

The Arizona Court of Appeals’ decision is reportedat 296 P.3d 998 (Ariz. App. 2013). App. 3. The ArizonaSupreme Court’s denial of the County’s Petition forReview is unpublished. App. 1. The decision of theYuma County Superior Court is unpublished. App. 15.

JURISDICTION

The Arizona Court of Appeals issued its Opinion onJanuary 10, 2013. App. 3. Yuma County filed a timelyPetition for Review which the Arizona Supreme Courtdenied on July 8, 2013. App. 1. This Court hasjurisdiction over this petition for certiorari under 28U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORYPROVISIONS INVOLVED

Article VI, Clause 2 of the United StatesConstitution:

This Constitution, and the Laws of the UnitedStates which shall be made in Pursuancethereof; and all Treaties made, or which shall bemade, under the Authority of the United States,shall be the supreme Law of the Land; and the

2

Judges in every State shall be bound thereby,any Thing in the Constitution or Laws of anyState to the Contrary notwithstanding.

STATEMENT OF THE CASE

In November 2010, Arizona voters passedProposition 203, Arizona Medical Marijuana Act(AMMA), codified in Title 36, Chapter 28.1, A.R.S.§§ 36-2801, et seq. The AMMA gives some peoplelimited protection from prosecution by the State. App.6.

On January 28, 2011, Federal authorities stoppedValerie Okun (Okun) at a Border Patrol checkpoint inYuma County, and found hashish and marijuana(pursuant to the AMMA’s definition of marijuana,A.R.S. § 36-2801(8) and (15), Okun’s hashish andmarijuana are hereafter referred collectively as“marijuana”). App. 16.

The marijuana was turned over to the Yuma CountySheriff as evidence of a possible crime. App. 16.

The State filed drug charges against Okun, butdismissed them after she produced proof that she isauthorized to possess marijuana under California’sMedical Marijuana Program, which entitles Okun topossess the marijuana under AMMA. App. 16.

After the charges were dropped, the superior courtgranted Okun’s request for the return of the marijuana.After the order was issued, the Yuma County Sheriffrefused to return the marijuana to Okun. App. 16.

3

On request by the superior court, the State andOkun submitted briefs on whether the court coulddirect the Sheriff to return the marijuana to Okun.App. 16.

The court then ordered the Sheriff to return themarijuana. The order found that state law compelledthe return of marijuana, and that the Sheriff isprobably immune pursuant to 21 U.S.C. § 885(d). App.15.

The Arizona Court of Appeals affirmed the superiorcourt’s order requiring the Sheriff to return themarijuana to Okun. The court of appeals declared thatArizona 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 thecourt’s order to return the marijuana. App. 4.

The court of appeals declared that their “onlyconcern is whether Arizona law required the Sheriff tocomply with the superior court’s order to return toOkun the marijuana that authorities seized from her atthe Border Patrol checkpoint.” App. 14.

The court of appeals declined to address the State’sargument that the court’s order to return marijuana toOkun is ordering a violation of federal law. App. 11-14.

The State petitioned for Arizona Supreme Courtreview; the petition was denied. App. 1.

4

REASONS FOR GRANTING THE PETITION

An Arizona state judge issued, and the court ofappeals affirmed, an order directing the Yuma CountySheriff to violate a clearly established federal law. Pursuant to Article III and Article VI, clause 2, of theUnited States Constitution, this Court should exerciseits supervisory power and direct the state judge tofollow federal law.

I. The Applicable Federal Law Is ClearlyEstablished

The Controlled Substances Act, 21 U.S.C. § 801 etseq., makes it unlawful to possess, manufacture,distribute or dispense any controlled substance exceptin a manner authorized by the Controlled SubstancesAct. 21 U.S.C. §§ 841(a)(1), 844(a). The ControlledSubstances Act provides that “[e]xcept as authorized bythis title, it shall be unlawful for any person knowinglyor intentionally - - (1) to manufacture, distribute, ordispense, or possess with intent to manufacture,distribute, or dispense, a controlled substance ….” 21U.S.C. § 812(a)(1). Simple possession of marijuana isa crime. 21 U.S.C. § 844(a).

Marijuana is classified as a Schedule I drug and hasno approved use worthy of an exception outside theconfines of a U.S. Government-approved researchproject. 21 U.S.C. §§ 841(a)(1), 812(b)(1)(B), 812(c),823(f). Whereas some other controlled substances canbe dispensed and prescribed for medical use, 21 U.S.C.§ 829, the same is not true for marijuana.

5

The federal government has not recognized alegitimate medical use for marijuana and there is noexception for medical marijuana distribution orpossession under the Controlled Substances Act. Gonzales v. Raich, 545 U.S. 1, 14–15 (2005). “[M]arijuana has no medical benefits worthy of anexception thus it has been held that there is no“medical necessity” defense available for charges underthe Controlled Substances Act.” U.S. v. OaklandCannabis Buyers’ Co-op, 532 U.S. 483, 491 (2001). Thepossession of marijuana, even when possessed inaccordance with a state’s medical marijuana law, isprohibited by federal law. Gonzales v. Raich, 545 U.S.1 (2005).

The trial court’s order requires the Sheriff to delivermarijuana to Okun. App. 15. Both the delivery by theSheriff and the possession by Okun are violations of aclearly established federal law.

II. The State Law Requires Return ofMarijuana

The AMMA, as interpreted by the court of appeals,requires the return of marijuana to Okun. But havingmade that finding, a state judge cannot move forwardwith a blind eye to a federal law that bars an orderdirecting the Sheriff to return marijuana to Okun.

III. Supremacy Clause Requirements on StateJudges

State courts, unlike the state legislatures and stateexecutives, are bound to follow federal law. Printz v.U.S., 521 U.S. 898, 907 (1997). The source of the

6

obligation is the United States Constitution, Article VI,clause 2, which provides that:

This Constitution, and the Laws of the UnitedStates which shall be made in Pursuancethereof; and all Treaties made, or which shall bemade, under the Authority of the United States,shall be the supreme Law of the Land; andthe Judges in every State shall be boundthereby, any Thing in the Constitution or Lawsof any State to the Contrary notwithstanding.[emphasis added]

Pursuant to this Constitutional provision, the U.S.Supreme Court has stated that state law is preemptedwhen it is impossible to comply with both state law andfederal law.

Even if Congress has not completely foreclosedstate legislation in a particular area, a statestatute is void to the extent that it actuallyconflicts with a valid federal statute. A conflictwill be found “where compliance with bothfederal and state regulations is a physicalimpossibility . . .” Florida Lime & AvocadoGrowers, Inc. v. Paul, 373 U.S. 132, 142-143(1963).

Ray v. Atlantic Richfield Co., 435 U.S. 151, 158 (1978).

Even where Congress has not completelydisplaced state regulation in a specific area,state law is nullified to the extent that itactually conflicts with federal law. Such aconflict arises when “compliance with both

7

federal and state regulations is a physicalimpossibility.” Florida Lime & Avocado Growers,Inc. v. Paul, 373 U.S. 132, 142-143 (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 interpretedthe laws of Arizona to require the Sheriff to delivermarijuana to Okun. However, “where state and federallaw ‘directly conflict’ state law must give way.” PLIVA,Inc. v. Mensing, 131 S. Ct. 2567, 2577 (2011); see alsoWyeth v. Levine, 555 U.S. 555 (2009).

IV. What the State Court Should Have Done

Because the trial court’s order requires unequivocalviolations of the Controlled Substances Act, the orderis in direct conflict with federal law. The court ofappeals should have resolved the conflict in favor offederal law, as required by Article VI, clause 2, of theUnited 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 fromfederal prosecution if the Sheriff complies with thecourt order to return marijuana to Okun. App. 10-11.While the purpose of this holding is to declare that theSheriff has no stake in the matter, the holding makesit clear that the court understood it was ordering theSheriff to violate federal law.

8

Second, addressing the natural result of returningmarijuana—illegal delivery by the Sheriff and illegalpossession by Okun—the court dismissed any review ofthe argument that Okun’s possession of marijuanaviolates federal law. App. 11-14. The court did notdispute that Okun’s possession of marijuana is afederal crime, but instead gave five reasons why it didnot care. The reasons stated were:

1. the absence of any actual or threatenedprosecution of Okun under federal law, App. 12;

2. the immunity that federal law affords theSheriff for complying with the marijuana returnorder, App. 12;

3. the State’s lack of standing to argue that federallaw prohibits Okun from possessing themarijuana, App. 12;

4. the Sheriff’s lack of a “personal stake” inwhether the Controlled Substances Act mightinvalidate Okun’s right under the AMMA, App.13; and

5. that Okun’s marijuana possession is not acontroversy before the court because the federalgovernment had not charged Okun with anycrime, App. 13.

In the end, after declaring that Arizona lawrequired the return of marijuana to Okun, the onlyjustification the court of appeals gave for issuing anorder in violation of federal law was that the Sheriffcould not be prosecuted and no one should care

9

whether Okun would violate federal law as a result ofthe court’s order.

The published opinion of the court of appealsreflects a conscious disregard for clearly establishedfederal law, and disrespect to the Supremacy Clause. “Under our Constitution no court, state or federal, mayserve as an accomplice in the willful transgression of‘the Laws of the United States,’ laws by which ‘theJudges 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 fromthe court’s misconception about a state judge’sSupremacy Clause obligation. In footnote 4 of the courtof appeals’ opinion, the court announces surprise to theState’s claim that state judges, unlike state legislatorsand 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 tothe Constitution, only state judges are bound to followfederal law. Clause 3 (Oath) versus Clause 2(Supremacy), U.S. Constitution, Article VI.

CONCLUSION

For the foregoing reasons, the petition for Writ ofCertiorari should be granted and the decision of thecourt of appeals should be reversed.

Because the decision of the court of appeals is aviolation of the Supremacy Clause on its face, this caseis appropriate for Rule 16(1) Summary Disposition.

10

Respectfully Submitted,

Edward Patrick FeheleyDeputy County Attorney Counsel of RecordJon R. SmithYuma County AttorneyTheresa W. FoxDeputy County AttorneyOffice of the Yuma County Attorney250 W. 2nd Street, Suite GYuma, Arizona 85364(928) 817-4300edward.feheley@yumacountyaz.gov

Counsel for Petitioner

APPENDIX

i

APPENDIX

TABLE OF CONTENTS

Appendix A: Order Denying Review in theSupreme Court for the State ofArizona(Filed July 8, 2013) . . . . . . . App. 1

Appendix B: Opinion in the Court of Appealsfor the State of Arizona, Division1(Filed January 10, 2013) . . . App. 3

Appendix C: Order in the Superior Court of theState of Arizona in and for theCounty of Yuma(Filed January 26, 2012) . . App. 15

App. 1

APPENDIX A

SUPREME COURTSTATE OF ARIZONA

Arizona Supreme Court No. CV-13-0040-PR

Court of Appeals Division One No. 1 CA-CV 12-0094

Yuma County Superior Court No. CR201100593

[Filed July 8, 2013]___________________________STATE OF ARIZONA, )

)Plaintiff/Appellant, )

)v. )

)VALERIE ANN OKUN, )

)Defendant/Appellee. )

___________________________)

GREETINGS:

The following action was taken by the Supreme Courtof the State of Arizona on July 8, 2013, in regard to theabove-referenced cause:

ORDERED: Petition for Review = DENIED.

App. 2

There is no record to return.

Janet Johnson, Clerk

TO:Edward P FeheleyTheresa W FoxMichael J DonovanElizabeth B OrtizBenjamin D KreutzbergSheila Sullivan PolkRuth Willinghamkh

App. 3

APPENDIX B

In the Court of AppealsState of Arizona

Division 1

No. 1 CA–CV 12–0094Department 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. S1400CR201100593

The Honorable Lisa W. Bleich, Judge Pro Tempore

AFFIRMED

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.

OPINION

JOHNSEN, Judge.

¶ 1 Authorities stopped Valerie Okun enteringArizona near Yuma and seized marijuana and othercontraband from her car. The State filed drug chargesagainst Okun, but dismissed them after she producedproof she is permitted to possess marijuana for medicalpurposes under the Arizona Medical Marijuana Act.After the charges were dropped, the superior courtgranted Okun’s request for the return of the marijuana.In this appeal from that order, the State arguesArizona law requires forfeiture of any marijuana seizedby law enforcement and also contends the YumaCounty Sheriff cannot return the marijuana to Okunwithout risk of violating the federal ControlledSubstances Act. We affirm the superior court’s orderrequiring the Sheriff to return the marijuana to Okun.Because Arizona law allows Okun to possess themarijuana, it is not subject to forfeiture under statelaw. Moreover, the Sheriff is immune from prosecutionunder the federal law for acts taken in compliance witha court order.

App. 5

FACTS AND PROCEDURAL BACKGROUND

¶ 2 Authorities stopped Okun’s car at a BorderPatrol checkpoint and found marijuana. State drugcharges against her were dismissed, however, after sheshowed she is authorized to possess the drug underCalifornia’s Medical Marijuana Program, and therebymay possess the drug under Arizona’s MedicalMarijuana Act. See Ariz. Rev. Stat. (“A.R.S.”)§§ 36–2801(17) (West 2013) (defining “visitingqualifying patient”), –2804.03(C) (West 2013) (visitingqualifying patients authorized under laws of otherstates also entitled to legally possess medicinalmarijuana in Arizona); Cal. Health & Safety Code§ 11362.71 (West 2013).1

¶ 3 At Okun’s request and without opposition fromthe State, the superior court then ordered the return ofthe seized material. After the order issued, however,the Yuma County Sheriff refused to return themarijuana to Okun. Okun filed a motion for order toshow cause, which the court granted over the State’sobjection. The State’s timely appeal followed. We havejurisdiction pursuant to A.R.S. §§ 12–120.21(A)(1)(West 2013) and –2101(A)(1) (West 2013).

1 Absent material revisions after the relevant date, we cite astatute’s current version.

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 36that establishes conditions allowing medicinal use ofmarijuana. Initiative Measure, Prop. 203 (approved byelection Nov. 2, 2010, eff. Dec. 4, 2010). As described bythe Arizona Legislative Council’s ballot measureanalysis, “the purpose of th[e] act was to protectpatients with debilitating medical conditions, as well astheir physicians and providers, from arrest andprosecution, criminal and other penalties and propertyforfeiture if such patients engage in the medical use ofmarijuana.” Ariz. Sec’y of State, Ariz. Ballot Prop.Guide, Gen. Election–Nov. 2, 2010 73, available athttp://azsos.gov/election/2010/info/PubPamphlet/english/prop203.pdf.

¶ 5 The AMMA allows a patient with a debilitatingmedical condition to obtain a registration identificationcard that permits possession and use of marijuana formedicinal purposes. A.R.S. §§ 36–2801(9), (13), (14),–2804.02 (West 2013). Section 36–2811(B)(1) (West2013) protects registered qualifying patients whopossess an allowable amount of marijuana from “arrest,prosecution or penalty in any manner, or denial of anyright or privilege, including any civil penalty ordisciplinary action by a court.” See A.R.S. § 36–2801(1)(defining “allowable amount”). Additionally, “visitingqualifying patients” holding equivalent identificationcards issued under the laws of another state have thesame protection. A.R.S. §§ 36–2801(17), –2804.03(C).The State does not dispute that Okun possesses a valid

App. 7

California-issued identification card that permits herto possess an allowable amount of marijuana inArizona.2

B. Okun’s Property Was Not SummarilyForfeited Pursuant to A.R.S. § 13–3413(C).

¶ 6 The State first argues the superior court erredin ordering the Sheriff to return the marijuana to Okunbecause the drug is subject to summary forfeitureunder A.R.S. § 13–3413(C) (West 2013). In relevantpart, § 13–3413(C) provides that marijuana “seized inconnection with any violation of this chapter or whichcome[s] into the possession of a law enforcementagency [is] summarily forfeited.” We review de novo thesuperior court’s interpretation of a statute. TDBTucson 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 § 13–3413(C) does not compel thesummary forfeiture of the marijuana seized from Okun.Addressing first the initial clause of the provision theState cites, law enforcement authorities did not seizethe drug from Okun “in connection with” a drug offenseunder Arizona law. As noted, the State does not disputethat Okun has a state-law right to possess the drug. Cf.United States v. 608 Taylor Ave., 584 F.2d 1297,1302–03 (3d Cir.1978) (motion for return of property

2 Officers at the Border Patrol checkpoint also seized hashish anddrug paraphernalia from Okun; the superior court ordered theSheriff to return those items to Okun, too. On appeal, the Statedoes not argue Okun lacked a state-law right to possess thehashish and paraphernalia.

App. 8

should be granted once criminal proceedings haveended).

¶ 8 Nor may the State properly rely on the secondclause of § 13–3413(C), which allows summaryforfeiture of any marijuana that comes “into thepossession of a law enforcement agency.” Othersubsections of § 13–3413 allow the State to bring civilforfeiture proceedings with respect to items such asmoney, books and equipment when they are used in achapter 34 drug offense. In contrast, the itemsenumerated in subsection (C)—“[p]eyote, dangerousdrugs, prescription-only drugs, marijuana, narcoticdrugs and plants from which such drugs may bederived”—are summarily forfeited because the merepossession of such items constitutes a criminal offense.See A.R.S. §§ 13–3402 to –3408 (West 2013).

¶ 9 In approving the AMMA, however, Arizonavoters decided that a qualified patient does not commita criminal offense by possessing an allowable amountof marijuana. Consistent with that voter-approveddirective, the AMMA mandates that marijuana maynot be seized or forfeited from a qualifying patient.Specifically, § 36–2811(G) states that “[p]roperty,including all interests in the property, otherwisesubject to forfeiture under title 13, chapter 39, that ispossessed, owned or used in connection with themedical use of marijuana ... is not subject to seizure orforfeiture.” (Emphasis added). This specific and morerecent provision exempting medical marijuana from“seizure or forfeiture” controls over the more generalprovision in the forfeiture statute upon which the Staterelies. See In re Guardianship/Conservatorship ofDenton, 190 Ariz. 152, 157, 945 P.2d 1283, 1288 (1997)

App. 9

(“[W]hen there is conflict between two statutes, ‘themore recent, specific statute governs over the older,more general statute.’ ”) (quotation omitted).

¶ 10 The State argues that because subpart (G) of§ 36–2811 refers to property “otherwise subject to” civilforfeiture proceedings pursuant to A.R.S. § 13–4301 et.seq., it does not bar summary forfeiture of seizedmarijuana pursuant to A.R.S. § 13–3413(C). In supportof this argument, the State points out that Oregon’smedical marijuana statute expressly provides thatmarijuana seized from a qualifying patient must bereturned to the patient once it is determined that thepatient qualifies for protection. Or. Rev. Stat.§ 475.323(2) (West 2013). The State argues that theAMMA’s omission of an express mandate for the returnof marijuana seized from a qualifying patientdemonstrates the drafters’ intent that authorities neednot return the marijuana because it has beensummarily forfeited pursuant to A.R.S. § 13–3413(C).

¶ 11 We cannot accept the State’s interpretation ofthe statutes. The AMMA prohibits the imposition of a“penalty in any manner” on a qualified patientpossessing an allowable amount of marijuana. A.R.S.§ 36–2811(B)(1). The State’s assertion—that eventhough § 36–2811(G) prohibits civil forfeitureproceedings against a qualified patient possessing anallowable amount of marijuana, authorities still maysummarily seize that same marijuana pursuant to§ 13–3413(C)—flies in the face of any reasonableinterpretation of the statute. Because we must respectthe voter-approved statutory mandate that a qualifiedpatient cannot suffer a penalty for possessing anallowable amount of marijuana, we reject the State’s

App. 10

argument that marijuana seized from a qualifiedpatient is subject to summary forfeiture pursuant to§ 13–3413(C).

C. The Sheriff Is Immune from FederalProsecution For Complying with the Superior

Court Order.

¶ 12 The State further argues the superior court’sorder is erroneous because it subjects the Sheriff toprosecution as a transferor of marijuana under thefederal Controlled Substances Act. See 21 U.S.C.§ 841(a)(1) (West 2013) (unlawful to “distribute[ ] ordispense” a controlled substance).

¶ 13 As Okun points out, however, federal lawimmunizes a law enforcement official from liabilityunder circumstances such as these. Title 21, section885(d) of the United States Code is titled “Immunity ofFederal, State, local and other officials” and providesthat, with exceptions not relevant here, “no civil orcriminal liability shall be imposed by virtue of thissubchapter ... upon any duly authorized officer of anyState, territory, political subdivision thereof ... whoshall be lawfully engaged in the enforcement of any lawor municipal ordinance relating to controlledsubstances.” 21 U.S.C. § 885(d). This provisionimmunizes law enforcement officers such as the Sherifffrom any would-be federal prosecution for complyingwith 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) (federalimmunity protects law enforcement from liability forcomplying with order requiring return of marijuana

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 immunityprovision, but argues the superior court’s observationthat it is “unlikely” that the Sheriff would beprosecuted under the federal law impliedly leaves openthe chance of a prosecution. As we have said, theconstruction of a statute is a matter we review de novo.Our conclusion that federal law immunizes the Sherifffor complying with a court order to return seizedproperty disposes of his contention to the contrary.3

D. Federal–Law Treatment of Possession by aMedical Marijuana User.

¶ 15 Finally, the State contends the superior courterred by ordering the return of Okun’s marijuanabecause Okun’s possession of it would constitute afederal crime. See 21 U.S.C. § 844(a) (West 2013). Insummary fashion, the State argues “state law ispreempted when it is impossible to comply with bothstate law and federal law” and the return order “is indirect conflict with federal law.”

3 Contrary to the State’s argument, the court order requiring theSheriff to return the marijuana to Okun will not render the Sheriffsubject to prosecution for transferring marijuana pursuant toA.R.S. § 13–3405(A)(4) (West 2013). See Acevedo v. Pima CountyAdult Prob. Dep’t, 142 Ariz. 319, 321–22, 690 P.2d 38, 40–41 (1984)(“Those officers, employees, and agents who assist the court in thejudicial process are also entitled to absolute immunity.”); Adamsv. State, 185 Ariz. 440, 444, 916 P.2d 1156, 1160 (App. 1995)(“nonjudicial personnel are entitled to immunity when carrying outcourt directive”) (quotation omitted).

App. 12

¶ 16 On the facts presented here, we decline toaddress the State’s suggestion that the ControlledSubstances Act preempts and thereby invalidates theAMMA. We do not question the general propositionthat 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.3d86, 92 (App. 2003).4 But several principles restrain usfrom deciding in this case whether federal lawpreempts the AMMA.

¶ 17 In the absence of any actual or threatenedprosecution of Okun under federal law, and given theimmunity that federal law affords the Sheriff forcomplying with the return order, the question is notripe. See Thomas v. Anchorage Equal Rights Comm’n,220 F.3d 1134, 1137 (9th Cir.2000) (if no enforcementaction or prosecution is threatened or imminent, thedispute is premature). By the same token, on the factsof this case, the State lacks standing to argue thatfederal law prohibits Okun from possessing themarijuana. Although Arizona’s constitution does notcontain a case or controversy requirement, a partymust demonstrate a distinct and palpable injurycaused 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 statelegislatures and state executives, are bound to follow federal law.”We do not understand the authority the State cites for thatproposition, Printz v. United States, 521 U.S. 898, 907, 117 S.Ct.2365, 138 L.Ed.2d 914 (1997), to mean that the Supremacy Clauseof the United States Constitution does not also bind statelegislatures and state executives.

App. 13

245 (App. 2007). Here, in the language of Karbal, theSheriff has no “personal stake” in whether the federalControlled Substances Act might invalidate Okun’sright under the AMMA to possess an allowable amountof marijuana. See id. The requirement of standing “isconsistent with notions of judicial restraint andensures that courts refrain from issuing advisoryopinions, that cases be ripe for decision and not moot,and that issues be fully developed between trueadversaries.” Bennett v. Brownlow, 211 Ariz. 193, 196,¶ 16, 119 P.3d 460, 463 (2005); see also County of SanDiego v. San Diego NORML, 165 Cal. App. 4th 798, 81Cal. Rptr. 3d 461, 472–73 (2008) (county has nostanding to raise hypothetical constitutional infirmitiesof a statute when statute did not cause it injury).

¶ 18 Whether Okun’s possession of marijuana maysubject her to federal prosecution despite her state-lawright to possess it is not a controversy before this courtbecause the federal government has not charged Okunwith any crime. Nor does public policy require us todecide the abstract issue the State presents. Cf. City ofGarden Grove, 68 Cal. Rptr. 3d. at 664–65 (deciding forreasons of public policy to address preemptionquestion, and holding federal Controlled SubstancesAct did not preempt California medical marijuana law).

¶ 19 Moreover, the State’s brief fails to provide anymeaningful discussion about federal preemption, theSupremacy Clause, legislative intent and how thosecomplex principles might apply in this context. SeeState v. Moody, 208 Ariz. 424, 452, ¶ 101 n. 9, 94 P.3d1119, 1147 (2004) (opening brief must presentsignificant arguments supported by authority,otherwise the party abandons and waives the claim)

App. 14

(quoting State v. Carver, 160 Ariz. 167, 175, 771 P.2d1382, 1390 (1989)).

¶ 20 On the facts presented, our only concern iswhether Arizona law requires the Sheriff to complywith the superior court’s order to return to Okun themarijuana that authorities seized from her at theBorder Patrol checkpoint. Pursuant to A.R.S.§ 36–2811(B) and (G), the superior court correctlyordered the Sheriff to return the marijuana.

CONCLUSION

¶ 21 For the foregoing reasons, we affirm thesuperior court’s order.

DIANE M. JOHNSEN, Acting Presiding Judge

CONCURRING: JON W. THOMPSON, Judge andKENTON D. JONES, Judge.*

* Pursuant to Article VI, Section 3 of the Arizona Constitution, theArizona Supreme Court designated the Honorable Kenton Jones,Judge of the Arizona Superior Court, to sit in this matter.

App. 15

APPENDIX C

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF YUMA

Case No. S1400CR201100593

[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’sMotion for Order to Show Cause, Defendant’sMemorandum Re: Order to Show Cause and Return ofProperty, and Plaintiff’s Memorandums Re: Order toShow Cause and Return of Property. This Court hasreviewed the pleadings and arguments of counsel.

App. 16

Facts: On January 28, 2011, the Defendant wasstopped at a Border Patrol checkpoint within YumaCounty. During a search of the vehicle, hashish,marijuana, and drug paraphernalia were found. All ofthese items belonged to the Defendant and theDefendant had a valid medical marijuana card. Thecase was dismissed on May 20, 2011. On August 15,2011 the defendant filed a motion for return of theproperty. Judge Gould signed an order releasing thedefendant’s property on August 17, 2011. The Sheriffthen refused to return the property and the defendantfiled a motion for order to show cause. Judge Gouldthen instructed counsel to submit memorandum on theissues below.

The first issue presented is whether any federal lawor regulation pre-empts this State Court from orderingreturn of the subject evidence from the U.S. DrugEnforcement Administration. The Plaintiff’s argumentsalso included why state law prohibits return ofDefendant’s marijuana and those arguments areaddressed below.

The Federal Controlled Substance Act prohibits aperson from knowingly or intentionally possessingmarijuana. 21 U.S.C.A § 801. It further states that, “Noprovision of this subchapter shall be construed asindicating an intent on the part of the Congress tooccupy the field in which that provision operates,including criminal penalties, to the exclusion of anyState law on the same subject matter which wouldotherwise be within the authority of the State, unlessthere is a positive conflict between that provision ofthis subchapter and that State law so that the twocannot consistently stand together.” 21 U.S.C.A § 903.

App. 17

The express language of the Act itself indicates thatCongress did not intend to trample on the rights of theStates to make their own laws pertaining to illegaldrugs and medical marijuana use. It further impliesthat State laws pertaining to medical marijuana usecan co-exist with Federal law without conflict.

A.R.S. § 36-2801, known as the Arizona MedicalMarijuana Act, allows a valid medical marijuana cardholder to possess marijuana under certain statutorycriteria. Therefore, a valid card holder who possessesan allowable amount of marijuana under the statue isin legal possession of the marijuana. The statute doesnot specifically address the issue of whether a validmedical marijuana card holder is entitled to return ofthe marijuana after criminal charges are dismissed.

The Plaintiff argues that A.R.S. § 13-3413(C)requires the destruction of the marijuana and hashishin this case. That statute states in relevant part,“...marijuana, narcotic drugs...which are seized inconnection with any violation of this chapter or whichcome into the possession of a law enforcementagency are summarily forfeited.” (Emphasisadded.)

The Court cannot find that the marijuana seized inthis case was connected with any violation of chapter34 of the Criminal Code. The case was dismissedbecause the defendant was in legal possession of themarijuana under Arizona Law. Additionally, the Courtcannot find that the catch all language in the statutebolded in the above paragraph was meant to includemarijuana that was legally possessed.

App. 18

The Plaintiff next argues that A.R.S. 36-2811(G)fails to speak to the disposal of seized drugs. Thatportion of the Arizona Medical Marijuana Act prohibitscivil forfeiture of property that is possessed inconnection with the medical use of marijuana. ThePlaintiff argues that the absence in that portion of thestatute of any language addressing marijuana seized ina criminal context means the marijuana is forfeited.

The Court does not find that argument to bepersuasive. A reading of A.R.S. 36-2811 in its entiretysupports the argument that the defendant is entitled toa return of her marijuana. Paragraph B of the statuteprovides in relevant part, “A registered qualifyingpatient or registered designated caregiver is not subjectto arrest, prosecution or penalty in any manner, ordenial of any right or privilege, including any civilpenalty or disciplinary action by a court ...” ParagraphB, along with paragraph G, support the position that aqualified patient should not be penalized in any wayand that would include forfeiture of her legallypossessed marijuana.

The Plaintiff further argues that both state andfederal law pre-empt this Court from ordering returnof the evidence. As to state law, Plaintiff argues thatthe Arizona Medical Marijuana Act does not authorizethe Yuma County Sheriff or this Court to transfer themarijuana back to the defendant because neither theSheriff nor the Court is considered a “nonprofit medicalmarijuana dispensary” or “registered designatedcaregiver”. The Court finds this argument lacks merit.The Sheriff is being ordered to return property to thelegal possessor. The Sheriff could not be found to be

App. 19

providing marijuana to the defendant in the samecontext.

As to Plaintiff’s argument that the Sheriff would beviolating federal law, “... it would stand to reason thatthe only way a police officer could be found in violationof 21 U.S.C. 841(a)(1) for distributing a controlledsubstance is if he or she intended to act as a drugpeddler rather than a law enforcement official.” City ofGarden Grove v. The Superior Court of Orange County,157 Cal. App. 4th 390 (2007). “As a practical matter,moreover, it seems exceedingly unlikely that federalprosecutors would ever attempt to haul a localconstable into federal court for complying with a statejudicial order calling for the return of a qualifiedpatient’s medical marijuana” (Id. at 390).

In City of Garden Grove v. The Superior Court ofOrange County, 157 Cal. App. 4th 390 (2007), thedefendant was stopped for a traffic violation and wasfound to be in possession of less than an ounce ofmarijuana. The defendant contested the drug chargebecause he was in legal possession in accordance withCalifornia State law (Compassionate Use Act). TheState dismissed the drug charge and the defendantfiled a petition for return of his marijuana. The trialcourt ordered the police department to return themarijuana to the defendant. The City appealed arguingthat the federal law preempts state law and thatreturning the marijuana would be a violation of federallaw. The Court of Appeals held that the federal druglaws do not supersede or preempt the defendant’s rightto return of his property and therefore the City’spetition was denied.

App. 20

In discussing the state law that gives qualifiedpatients the right to possess marijuana, the Courtstated as follows, “But if the City prevails, the policecould thwart that objective by withholding marijuanathey have seized from qualified patients, even when thepatient is no longer subject to state criminalprosecution.” (Id. at 664.)

In City of Garden Grove v. The Superior Court ofOrange County, 157 Cal. App. 4th 355 (2007), the Courtalso stated that, “even though the state law is silent asto whether a qualified patient is entitled to the returnof his marijuana once criminal charges against himhave been dismissed, due process principles seem to usto compel that result.” The Court went on to say thatthe defendant had a right to possession of themarijuana and “that right...is grounded, at bottom, onfairness principles embodied in the due process clause.”(Id. at 682). The Fourteenth Amendment to the UnitedStates Constitution provides that not state shall“deprive any person of life liberty, or property withoutdue process of law.” (U.S. Const., 14th Amend., § 1).

The second issue presented is whether the Courthas the authority to direct the Sheriff to appear andshow cause in a case that was dismissed by order filedMay 20, 2011. Does dismissal of the case in effect meanthere is no case and therefore no longer jurisdiction bythe Court? The Court has not been provided with anyauthority that would prevent the Court from grantingthe motion for return of property and issuing an orderto show cause if the Sheriff fails to comply.

In Allvene v. United States 445 A.2nd 887 (1983), theCourt found that the Superior Court had jurisdiction to

App. 21

decide criminal defendant’s motions for return ofproperty when the case is disposed of by nolle prosequi.The Court reasoned that the existence of civil remediesdid not divest the court of jurisdiction nor preclude thecourt 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 powerto direct return of property seized from criminaldefendant after it is no longer needed against himexists after underlying criminal case has beenterminated; 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 seizedproperty in his criminal case after the case had beendismissed by the State. The trial Court denied hismotion and Salerno filed another motion for release ofhis seized property. The trial Court again deniedSalerno’s motion and directed Salerno to proceed underthe forfeiture statutes. Salerno did not proceed underthe forfeiture statutes. Instead, he filed another motionwith the Court in the criminal case. The Court deniedthe motion and Salerno appealed. The appellate courtfound they had jurisdiction based on the trial Courtruling solely on a motion for return of property whichresulted in a final appealable order. The trial Courtwas required to consider defendant’s claims for returnof property on remand.

BASED ON THE FOREGOING, THE COURTFINDS AS FOLLOWS:

App. 22

1. That Ms. Okun was in legal possession of hermarijuana according to Arizona State law.

2. That the Arizona Medical Marijuana Act is not inconflict with the Federal Law.

3. That this Court has jurisdiction to grant themotion for return of property.

4. That Ms. Okun is entitled to return of hermarijuana and other property.

IT IS ORDERED that the Sheriff of Yuma Countyshall immediately return Ms. Okun’s property.

ORDERED this 26th day of January 2012.Lisa W. BleichSuperior Court Commissioner