State v. Hardesty

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-08-0244-PR
Appellee, )
) Court of Appeals
) Division One
v. ) No. 1 CA-CR 06-0966
)
) Yavapai County
) Superior Court
DANNY RAY HARDESTY, ) No. CR 820060181
)
Appellant. ) O P I N I O N
_________________________________ )

Appeal from the Superior Court in Yavapai County
The Honorable Thomas B. Lindberg, Judge

JUDGMENT AFFIRMED
________________________________________________________________

Opinion of the Court of Appeals, Division One
220 Ariz. 149, 204 P.3d 407 (App. 2008)

VACATED
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation
Joseph L. Parkhurst, Tucson
Assistant Attorney General
Attorneys for State of Arizona

DERIENZO AND WILLIAMS, P.L.L.C. Prescott Valley
By Daniel J. DeRienzo
Craig Williams
Attorneys for Danny Ray Hardesty
________________________________________________________________

B E R C H, Chief Justice

¶1 Danny Ray Hardesty seeks review of his convictions for

possession of marijuana and drug paraphernalia. He attempted to
assert a religious use defense to the charges pursuant to

Arizona Revised Statutes (“A.R.S.”) § 41-1493.01 (2004), but was

precluded from doing so. We hold that although religious

exercise may be asserted as a defense, Hardesty’s defense fails

as a matter of law. We affirm the convictions.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶2 On April 15, 2005, Hardesty was driving his van at

night when an officer stopped him because one headlight was out.

The officer smelled marijuana and recovered a baggie containing

fourteen grams of marijuana from a daypack on the front

floorboard of the van, less than two feet from the driver, and a

marijuana joint Hardesty had just thrown out the window.

¶3 Before trial, Hardesty moved to dismiss the charges on

the ground that his use of marijuana was a sacrament of his

church, the Church of Cognizance. He argued that such use was

protected by the free exercise clauses of the Arizona and

Federal Constitutions,1 Arizona’s Free Exercise of Religion Act2

(“FERA”), the Religious Freedom Restoration Act of 19933

1
U.S. Const. amend. I; Ariz. Const. art. 2, § 12. In
addition, Hardesty cited Arizona’s religious tolerance
provision, Ariz. Const. art. 20, ¶ 1.
2
A.R.S. § 41-1493.01.
3
Pub. L. No. 103-141, 107 Stat. 1488, application to states
invalidated by City of Boerne v. Flores, 521 U.S. 507 (1997)
(current version at 42 U.S.C. §§ 2000bb to 2000bb-4 (2006)).

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(“RFRA”), and the International Religious Freedom Act of 1998.4

¶4 At an evidentiary hearing regarding the religious use

defense, Hardesty presented evidence that marijuana is the main

religious sacrament of the Church of Cognizance. He referred

the court to the church’s website and recorded statement of

religious sentiment, which inform that the church is made up of

“individual orthodox member monasteries,” each consisting of a

family unit that establishes its own mode of worship.5

Hardesty’s mode was to smoke and eat marijuana without limit as

to time or place.

¶5 While Hardesty’s motion to dismiss was pending, the

State moved in limine to exclude any reference to a religious

freedom defense at trial. The trial court denied Hardesty’s

motion to dismiss and granted the State’s motion in limine,

finding that Hardesty’s defense was “not recognized . . . under

Arizona law.” After a bench trial, the court convicted Hardesty

of possessing marijuana and drug paraphernalia. The court of

appeals affirmed, ostensibly taking judicial notice of the

4
Pub. L. No. 105-292, 112 Stat. 2787 (codified as amended in
scattered sections of 22 U.S.C.).
5
See Church of Cognizance Introduced,
http://coc.enlightener.net/coc/documents/pledge.pdf (last
visited Aug. 31, 2009); see also United States v. Quaintance, 471 F. Supp. 2d 1153, 1162 (D.N.M. 2006) (relying on the
testimony of the church founder and the same witness called by
Hardesty for the assertion that each family unit sets its own
religious practices).
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harmful effects of marijuana to establish the State’s compelling

interest in banning the possession of marijuana. State v.

Hardesty, 220 Ariz. 149, 151, ¶ 1, 204 P.3d 407, 409 (App.

2008).

¶6 We granted review because the religious exercise

defense presents an issue of first impression and statewide

importance. See Ariz. R. Crim. P. 31.19(c)(3); State v. Hicks

(Durnan), 219 Ariz. 328, 329, ¶ 8, 198 P.3d 1200, 1201 (2009).

We have jurisdiction under Article 6, Section 5(3) of the

Arizona Constitution, A.R.S. § 12-120.24 (2003), and Arizona

Rule of Criminal Procedure 31.19.

II. DISCUSSION

¶7 Although Hardesty presents his defense under

provisions of the Arizona and Federal Constitutions, various

federal statutes, and Arizona’s Free Exercise of Religion Act

(“FERA”), we need address only Hardesty’s FERA defense.6 We

6
Hardesty challenges the enforcement of a neutral law of
general applicability, foreclosing any claim under the First
Amendment as incorporated against the states. See Employment
Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 881-82 (1990).
We need not address Hardesty’s RFRA claim because that federal
statute does not apply to the states. See Flores, 521 U.S. at
534-36. Hardesty failed to provide argument on the
International Religious Freedom Act of 1998 or the Arizona
Constitution’s religious tolerance provision. Pub. L. No. 105-
292, 112 Stat. 2787 (IRFA); Ariz. Const. art. 20, ¶ 1 (religious
tolerance). Not knowing what Hardesty’s claims are, we have no
basis on which to review them. Cf. Ariz. R. Crim. P.
31.13(c)(1)(vi) (requiring that appellants’ briefs contain legal
contentions and supporting authorities).
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review this question of statutory interpretation de novo, using

the statutory language to help us ascertain and effectuate the

legislature’s intent. State v. Peek, 219 Ariz. 182, 183-84,

¶¶ 6, 11, 195 P.3d 641, 642-43 (2008). When, as here, the

legislature enacts a statement of purpose, we interpret the

statute in light of that purpose. See Backus v. State, 220

Ariz. 101, 104, ¶ 9, 203 P.3d 499, 502 (2009).

A. FERA

¶8 The legislature passed FERA in 1999 to protect Arizona

citizens’ right to exercise their religious beliefs free from

undue governmental interference. 1999 Ariz. Sess. Laws, ch.

332, § 2 (1st Reg. Sess.). FERA parallels RFRA, 42 U.S.C.

§§ 2000bb to 2000bb-4, a federal act that also protects free

exercise rights, but does not apply to the states. City of

Boerne v. Flores, 521 U.S. 507, 534-36 (1997).

¶9 The operative portion of FERA permits the government

to burden the exercise of religion only if the “application of

the burden to the person is both . . . [i]n furtherance of a

compelling governmental interest [and] [t]he least restrictive

means of furthering that compelling governmental interest.”

A.R.S. § 41-1493.01(C) (2004). The government’s violation of

this section provides a “defense in a judicial proceeding.”

Id. § 41-1493.01(D).

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B. Establishing FERA Claims

1. Allocation of burdens

¶10 A party who raises a religious exercise claim or

defense under FERA must establish three elements: (1) that an

action or refusal to act is motivated by a religious belief, (2)

that the religious belief is sincerely held, and (3) that the

governmental action substantially burdens the exercise of

religious beliefs. Cf. Wisconsin v. Yoder, 406 U.S. 205, 215-18

(1972) (requiring showing that a government action substantially

interferes with a sincerely held religious belief, not merely a

way of life or personal preference); Sherbert v. Verner, 374

U.S. 398, 406 (1963) (to same effect); Weir v. Nix, 114 F.3d

817, 820 (8th Cir. 1997) (addressing the RFRA standard based on

language similar to that used in FERA); Jolly v. Coughlin, 76

F.3d 468, 476 (2d Cir. 1996), abrogated on other grounds by

Flores, 521 U.S. at 507 (same); Cheema v. Thompson, 67 F.3d 883,

885 (9th Cir. 1995), abrogated on other grounds by Flores, 521

U.S. at 507 (same); Goodall ex rel. Goodall v. Stafford County

Sch. Bd., 60 F.3d 168, 171 (4th Cir. 1995) (same). Once the

claimant establishes a religious belief that is sincerely held

and substantially burdened, the burden shifts to the state to

demonstrate that its action furthers a “compelling governmental

interest” and is “[t]he least restrictive means of furthering

that compelling governmental interest.” A.R.S. § 41-1493.01(C).

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¶11 In this case, the State conceded all of the elements a

defendant must prove to establish a religious exercise defense:

that Hardesty held a sincere belief in a true religion and that

the law prohibiting possession of marijuana substantially

burdened his exercise of religion. As to the State’s case,

Hardesty conceded during argument on the motion to dismiss that

the State had a compelling interest. Accordingly, the only

remaining question is whether the State met its burden of

proving that the statutory prohibition on the possession of

marijuana is the least restrictive means of furthering the

government’s compelling interest.

2. Question of fact or law

¶12 Hardesty contends that, because defenses in criminal

cases typically involve fact questions that are presented to and

decided by a jury, his religious use defense must also be

submitted to a jury. Courts have consistently treated the

compelling interest/least restrictive means test as a question

of law to be determined by the court and subject to de novo

review. See, e.g., United States v. Friday, 525 F.3d 938, 948

(10th Cir. 2008) (describing role of “constitutional facts,

subject to [the court’s] ‘independent examination’” in First

Amendment free exercise analysis, citing Bose Corp. v. Consumers

Union, 466 U.S. 485, 499 (1984), and Henry P. Monaghan,

Constitutional Fact Review, 85 Colum. L. Rev. 229 (1985)), cert.

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denied, 129 S. Ct. 1312 (2009); see also Hamilton v. Schriro, 74

F.3d 1545, 1552 (8th Cir. 1996) (noting that while trial court

findings of fact are subject to review under the clearly

erroneous standard, the ultimate question of whether one is

deprived of a free exercise right is a question of law subject

to de novo review); Eng’g Contractors Ass’n of S. Fla. v. Metro.

Dade County, 122 F.3d 895, 905 (11th Cir. 1997); Contractors

Ass’n of E. Pa. v. City of Phila., 91 F.3d 586, 596 (3d Cir.

1996); Concrete Works of Colo., Inc. v. City & County of Denver,

36 F.3d 1513, 1522 (10th Cir. 1994); In re State-Record Co., 917

F.2d 124, 127 (4th Cir. 1990); Scott v. Rosenberg, 702 F.2d

1263, 1274 (9th Cir. 1983); Evans v. Romer, 882 P.2d 1335, 1341

(Colo. 1994), aff’d, 517 U.S. 620 (1996); Wadsworth v. State,

911 P.2d 1165, 1170 (Mont. 1996); State v. Melin, 428 N.W.2d

227, 229-30 (N.D. 1988). Hardesty has made no convincing

argument that we should do otherwise and we therefore conclude,

as all other courts have done, that whether the government has a

compelling interest that is served by the least restrictive

means is a question of law for the court to decide.

3. Compelling interest claim

¶13 Hardesty urges that Gonzales v. O Centro Espirita

Beneficente Uniao do Vegetal, 546 U.S. 418 (2006), required the

trial court to hold an evidentiary hearing to determine whether

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the State has a compelling interest and can accomplish its

compelling interest by less restrictive means.7

¶14 Hardesty’s reliance on O Centro is misplaced.

Although the Court there observed that an exemption may be

available under RFRA even though the federal Controlled

Substances Act broadly prohibits possession of schedule one

substances, id. at 433-35 (noting peyote exception), the Court

did not require an evidentiary hearing in every RFRA case, see

id. at 418. Instead, once the government establishes a

compelling interest, courts must see whether the religious use

can be exempted. Id. at 436 (citing Cutter v. Wilkinson, 544

U.S. 709 (2005)). That is, the government must establish that

applying the law in the particular circumstances is the least

restrictive means of regulating.

¶15 Hardesty next argues that we should apply the modified

compelling interest test set forth in Church of the Lukumi

Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993).

7
The court of appeals disregarded O Centro because it
interpreted RFRA, not FERA. Because, however, RFRA is
substantially identical to FERA, compare 42 U.S.C. § 2000bb-1(b)
(2006) with A.R.S. § 41-1493.01(C), the United States Supreme
Court’s interpretation of RFRA, although technically not binding
in our interpretation of FERA, provides persuasive authority,
see, e.g., Ariz. State Tax Comm’n v. Kieckhefer, 67 Ariz. 102,
107, 191 P.2d 729, 732 (1948); see also Fid. Union Trust Co. v.
Field, 311 U.S. 169, 177 (1940) (noting that “[t]he highest
state court is the final authority on state law”); State v.
Locks, 91 Ariz. 394, 395-96, 372 P.2d 724, 725 (1962) (observing
that “the construction of state laws is the exclusive
responsibility of the state courts”).
- 9 -
We disagree. That case, which arose under the First Amendment,

not RFRA, involved a statute that singled out and prohibited a

disfavored religious practice of a particular religion by

imposing a burden only on religiously motivated conduct. Id. at

545-46. On review, the Court determined that a law targeting

religious conduct is the “precise evil . . . the requirement of

general applicability is designed to prevent.” Id. at 546.

Such laws are subject to strict scrutiny and survive such

searching review “only in rare cases.” Id.

¶16 In contrast to the targeted law at issue in Lukumi

Babalu Aye, laws of general applicability are judged under the

First Amendment by a lesser standard. In Yoder, the Court

acknowledged that religiously based conduct is “often subject to

regulation by the States in the exercise of their undoubted

power to promote the health, safety, and general welfare, or the

Federal Government in the exercise of its delegated powers.”

406 U.S. at 220. Because Lukumi Babalu Aye involved a statute

that targeted a religious practice, the case does not set the

standard applicable to cases such as this one that involve

nondiscriminatory laws of general applicability.

C. Applying FERA

1. Compelling state interest

¶17 Hardesty conceded that the State had a compelling

interest, although he did not clearly articulate which interest

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he conceded to be compelling. This concession comports with the

case law regarding marijuana, which shows that courts

consistently find the government’s interest in regulating

marijuana to be a compelling interest. See, e.g., United States

v. Israel, 317 F.3d 768, 772 (7th Cir. 2003); Olsen v. DEA, 878

F.2d 1458, 1462 (D.C. Cir. 1989) (noting that “[e]very federal

court that has considered the matter, so far as we are aware,

has accepted the congressional determination that marijuana in

fact poses a real threat to individual health and social

welfare” (alteration in original) (citation omitted)).

2. Least restrictive means

¶18 The existence of a compelling interest is not the end

of the inquiry because FERA, by its terms, allows exceptions to

neutral state laws of general applicability that substantially

burden the free exercise of religious beliefs, see A.R.S. § 41-

1493.01(A)-(C), unless the government also demonstrates that the

“application of the [substantial] burden to the person is . . .

[t]he least restrictive means of furthering that compelling

governmental interest.” Id. § 41-1493.01(C). Hardesty argues

that the law does not accomplish its goals by the least

restrictive means.

¶19 Because use of the least restrictive means is

determined in light of the specific interest asserted as

compelling, we must ordinarily determine which government

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interest is compelling. See id. (requiring the state to use

“[t]he least restrictive means of furthering that compelling

governmental interest” (emphasis added)). The State asserted at

least two compelling interests: preventing the deleterious

health effects associated with marijuana use and combating the

danger to public safety and welfare that result from trafficking

in marijuana. The State presented several cases in which courts

found compelling the government’s interest in regulating

marijuana and combating the crimes associated with drug use and

drug trafficking. See, e.g., United States v. Middleton, 690

F.2d 820, 824-25 (11th Cir. 1982); Randall v. Wyrick, 441 F.

Supp. 312, 315-16 (W.D. Mo. 1977); United States v. Kuch, 288 F.

Supp. 439, 446 (D.D.C. 1968); see also United States v.

Mendenhall, 446 U.S. 544, 561 (1980) (Powell, J., concurring in

part and concurring in the judgment) (stating that “[t]he public

has a compelling interest in detecting those who would traffic

in deadly drugs for personal profit”); Branzburg v. Hayes, 408

U.S. 665, 701 (1972) (concluding, in a free speech context, that

“the State has the necessary [compelling] interest in

extirpating the traffic in illegal drugs”); Armijo v. State, 904

P.2d 1028, 1029 (Nev. 1995) (holding “that the State has a

compelling interest in protecting its children from the evils

that follow both the use and trafficking of drugs”);

Commonwealth v. Martin, 626 A.2d 556, 560 (Pa. 1993) (referring

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to “a compelling state interest in eradicating illegal

trafficking in drugs”); McDorman v. State, 757 S.W.2d 905, 907

(Tex. Ct. App. 1988) (observing that “the State has a compelling

interest to suppress illicit drug traffic”); see also Nat’l Drug

Intelligence Ctr., U.S. Dep’t of Justice, National Drug Threat

Assessment 2008, at v-vi, 16-17, 57-58 (2007) available at

http://www.usdoj.gov/ndic/pubs25/25921/25921p.pdf (describing

the persistent marijuana smuggling problem generally and the

increase in smuggling operations in Arizona). Another obvious

compelling interest is the public safety concern posed by

unlimited use, particularly by those driving motor vehicles.

¶20 Against these compelling interests, Hardesty claims

the broad right to use marijuana at all times, including the

right to ingest while driving and, presumably, the right to

drive while impaired by marijuana. The State argues that only a

ban will prevent such use.

¶21 To prove that a ban on marijuana is the least

restrictive means, the State must show that proposed

alternatives for achieving the State’s compelling interest are

ineffective or impractical. See A.R.S. § 41-1493.01(C) (placing

the burden on the state). It does not have to show that no less

restrictive way to regulate is conceivable, only that none has

been proposed. Blount v. Dep’t of Educ. & Cultural Servs., 551

A.2d 1377, 1382 (Me. 1988) (“The State need not meet the

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impossible standard of proving that no adequate less restrictive

alternative can be developed, only that none has been

proposed.”); cf. Westchester Day Sch. v. Vill. of Mamaroneck,

504 F.3d 338, 353 (2d Cir. 2007) (referring to the least

restrictive means available rather than the least restrictive

means possible); Am. Life League, Inc. v. Reno, 47 F.3d 642, 648

(4th Cir. 1995) (same).

¶22 Hardesty claims an unlimited religious right to use

marijuana when and where he chooses, and in whatever amounts he

sees fit. In the context of this case, no means less

restrictive than a ban will achieve the State’s conceded

interests.

¶23 Although Hardesty argued to the trial court that he is

entitled to assert a religious use defense identical to that

afforded peyote users, there is an obvious difference between

the two situations. Members of the Native American Church

assert only the religious right to use peyote in limited

sacramental rites; Hardesty asserts the right to use marijuana

whenever he pleases, including while driving. He also failed to

address the disparate magnitudes of the illicit use and

trafficking of peyote as opposed to marijuana. See Olsen, 878

F.2d at 1463 (citing report that fifteen million pounds of

marijuana were seized during an eight-year period compared to

only nineteen pounds of peyote). Given Hardesty’s religious

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beliefs, we conclude that there is no less restrictive

alternative that would serve the State’s compelling public

safety interests and still excuse the conduct for which Hardesty

was tried and convicted.8

III. CONCLUSION

¶24 Although religious exercise may provide a valid

defense under A.R.S. § 41-1493.01, in the circumstances of this

case, Hardesty’s defense fails as a matter of law. We affirm

the judgment of the trial court and vacate the opinion of the

court of appeals.9

_______________________________________
Rebecca White Berch, Chief Justice

CONCURRING:

_______________________________________
Andrew D. Hurwitz, Vice Chief Justice

8
Because Hardesty is asserting a FERA defense to criminal
charges, the issue is whether a less restrictive statute or
regulation would have excused the conduct for which he was
convicted. For example, apart from the specific statutory
exemption under A.R.S. § 13-3402(B), a member of the Native
American Church charged with possession of peyote might be able
to assert that a less restrictive governmental regulation than a
total ban would serve the government’s interest. The analysis
would be different, however, if the charged criminal use
occurred while the defendant was driving a school bus.
9
Hardesty was convicted of possession of marijuana and
possession of drug paraphernalia. He made no argument
concerning the drug paraphernalia charge, apparently tying his
conviction on that charge to his religious use defense on the
possession charge. Because Hardesty’s religious use defense
fails, we affirm the conviction on the paraphernalia charge as
well as the possession charge.
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_______________________________________
Michael D. Ryan, Justice

_______________________________________
W. Scott Bales, Justice

_______________________________________
Ruth V. McGregor, Justice (Retired)

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