                                 IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                        KEENAN REED-KALIHER,
                             Petitioner,

                                    v.

 THE HONORABLE WALLACE R. HOGGATT, JUDGE OF THE SUPERIOR COURT
    OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF COCHISE,
                            Respondent,

                                   and

                          STATE OF ARIZONA,
                          Real Party in Interest.

                          No. CV-14-0226-PR
                          Filed April 7, 2015

           Appeal from the Superior Court in Cochise County
              The Honorable Wallace R. Hoggatt, Judge
                          No. CR-201000683
                             REVERSED

             Opinion of the Court of Appeals, Division Two
                   235 Ariz. 361, 332 P.3d 587 (2014)
                              AFFIRMED

COUNSEL:

Thomas C. Holz (argued), Law Office of Thomas C. Holz, Bisbee, Attorneys
for Keenan Reed-Kaliher

Edward G. Rheinheimer, Cochise County Attorney; Doyle B. Johnstun
(argued), Chief Criminal Deputy County Attorney; Brian M. McIntyre,
Deputy County Attorney, Bisbee, Attorneys for State of Arizona
                 REED-KALIHER v. HOGGATT (STATE)
                        Opinion of the Court

Barbara LaWall, Pima County Attorney; Jacob R. Lines, Deputy County
Attorney, Tucson, Attorneys for Amicus Curiae Pima County Attorney

William G. Montgomery, Maricopa County Attorney; Thomas P. Liddy,
Bruce P. White, and Joseph I. Vigil, Deputy County Attorneys, Phoenix,
Attorneys for Amici Curiae Maricopa County and Maricopa County
Attorney William Montgomery

David J. Euchner and Sarah L. Mayhew, Tucson, Attorneys for Amicus
Curiae Arizona Attorneys for Criminal Justice

Thomas W. Dean, Phoenix, Attorney for Amicus Curiae National
Organization for the Reform of Marijuana Laws

JUSTICE BERCH authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES
BRUTINEL and TIMMER joined.

JUSTICE BERCH, opinion of the Court:

¶1             Keenan Reed-Kaliher pleaded guilty to possession of
marijuana for sale and attempted possession of a narcotic drug for sale. A
superior court judge sentenced him to 1.5 years in prison on the marijuana
count and suspended the sentence on the narcotic drug count, imposing
three years’ probation. One of the conditions of his probation required him
to “obey all laws.”

¶2             While Reed-Kaliher was serving his prison term, the people
of Arizona passed Proposition 203, the Arizona Medical Marijuana Act
(“AMMA”). AMMA permits “a person who has been diagnosed by a
physician as having a debilitating medical condition” to apply for a card
identifying the possessor as a “registered qualifying patient.” A.R.S. § 36-
2801(13), (14). The definition of “debilitating medical condition” includes a
“chronic . . . medical condition . . . that produces . . . severe and chronic
pain.” Id. § 36-2801(3)(b).

¶3          Reed-Kaliher suffers chronic pain resulting from a fractured
hip. After AMMA became state law, Reed-Kaliher obtained a “registry




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                  REED-KALIHER v. HOGGATT (STATE)
                         Opinion of the Court

identification card” from the Arizona Department of Health Services that
identifies him as a “registered qualifying patient” under AMMA, so that he
might obtain medical marijuana to ease his pain.

¶4               During the term of Reed-Kaliher’s probation, his probation
officer added a new condition to his probation, specifying that he “not
possess or use marijuana for any reason.” Reed-Kaliher opposed this
condition and sought relief in the superior court. He claimed that AMMA’s
immunity provision, A.R.S. § 36-2811(B), shields him from prosecution,
revocation of probation, or other punishment for his possession or use of
medical marijuana. That provision specifies that “[a] registered qualifying
patient . . . is not subject to arrest, prosecution or penalty in any manner, or
denial of any right or privilege . . . [f]or . . . medical use of marijuana
pursuant to [AMMA],” as long as the patient complies with statutory limits
on quantity and location of marijuana use. Reed-Kaliher asked the court to
amend his probation conditions to delete the “no marijuana” term. The
court denied the motion.

¶5            Reed-Kaliher filed a special action in the court of appeals.
That court granted relief, holding that a qualifying patient cannot “be
deprived of the privilege of probation solely based on his medical use of
marijuana” within the limitations on quantity and location provided by
AMMA, and “a condition of probation threatening to revoke his privilege
for such use cannot be enforced lawfully and is invalid.” Reed-Kaliher v.
Hoggatt (State), 235 Ariz. 361, 364 ¶ 12, 332 P.3d 587, 590 (App. 2014). We
granted review because the scope of immunity under AMMA is a question
of statewide importance.

                              I. DISCUSSION

¶6             We review questions of statutory interpretation de novo.
Gutierrez v. Indus. Comm’n of Ariz., 226 Ariz. 395, 396 ¶ 5, 249 P.3d 1095, 1096
(2011). “Our primary objective in construing statutes adopted by initiative
is to give effect to the intent of the electorate.” State v. Gomez, 212 Ariz. 55,
57 ¶ 11, 127 P.3d 873, 875 (2006).




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                 REED-KALIHER v. HOGGATT (STATE)
                        Opinion of the Court

      A.     AMMA’s Application to Probationers

¶7             AMMA permits those who meet statutory conditions to use
medical marijuana. Because marijuana possession and use are otherwise
illegal in Arizona, A.R.S. § 13-3405(A), the drafters sought to ensure that
those using marijuana pursuant to AMMA would not be penalized for such
use. They therefore included an immunity provision that protects users
from being “subject to arrest, prosecution or penalty in any manner, or
denial of any right or privilege” as long as their use or possession complies
with the terms of AMMA. A.R.S. § 36-2811(B).

¶8            AMMA broadly immunizes qualified patients, carving out
only narrow exceptions from its otherwise sweeping grant of immunity
against “penalty in any manner, or denial of any right or privilege.” Id.
(emphasis added). It does not allow qualified patients to use medical
marijuana “in any correctional facility,” in public places, or while driving
or performing other tasks that must be undertaken with care, nor does it
immunize possession of marijuana in excess of the quantity limitations
provided by the Act. Id. §§ 36-2802, –2811(B). But it does not expressly
prohibit those who have been convicted of drug offenses from using
medical marijuana pursuant to AMMA. The immunity expressly applies
to any “registered qualifying patient.” Id. § 36-2811(B). The State does not
contest that Reed-Kaliher is such a patient. Thus, the immunity provision
by its terms would include rather than exclude him.

¶9            AMMA precludes people who have committed “excluded
felony offense[s]” from serving as “designated caregiver[s]” or “medical
marijuana dispensary agent[s].” Id. § 36-2801(5)(c), (10). But even such
offenders are not disqualified from being “qualifying patient[s].” Id. § 36-
2801(13). The “excluded felony offense[s]” include violent crimes and
recent drug offenses, except “conduct that would be immune” under
AMMA. Id. § 36-2801(7). Thus, AMMA does not deny even those convicted
of violent crimes or drug offenses (so long as they are not incarcerated)
access to medical marijuana if it could alleviate severe or chronic pain or
debilitating medical conditions. Id. §§ 36-2801(3), -2802(B)(3). We therefore
conclude that the immunity provision of AMMA does not exclude
probationers.




                                     4
                  REED-KALIHER v. HOGGATT (STATE)
                         Opinion of the Court

       B.     Conditioning Probation on Abstention from AMMA-
              Compliant Marijuana Use

¶10           Probation is a privilege. State v. Montgomery, 115 Ariz. 583,
584, 566 P.2d 1329, 1330 (1977). Revocation of probation is a penalty. State
v. Lyons, 167 Ariz. 15, 17, 804 P.2d 744, 746 (1990). Under AMMA, if the
state extends a plea offer that includes probation, it cannot condition the
plea on acceptance of a probationary term that would prohibit a qualified
patient from using medical marijuana pursuant to the Act, as such an action
would constitute the denial of a privilege. Nor may a court impose such a
condition or penalize a probationer by revoking probation for such AMMA-
compliant use, as that action would constitute a punishment.

¶11           “When granting probation, the trial court has only that
authority given by the statutes of Arizona.” State v. Jordan, 120 Ariz. 97, 98,
584 P.2d 561, 562 (1978); see also Green v. Superior Court (State), 132 Ariz. 468,
471, 647 P.2d 166, 169 (1982) (to same effect). In this case, an Arizona statute,
AMMA, precludes the court from imposing any penalty for AMMA-
compliant marijuana use. A.R.S. § 36-2811(B)(1).

¶12           The State nonetheless argues that prohibiting one convicted
of a drug crime from using marijuana should be permitted because it is a
reasonable and necessary condition of probation. Our job here, however, is
not to determine the appropriateness of the term, but rather to determine
its legality. While the State can and should include reasonable and
necessary terms of probation, it cannot insert illegal ones. See Coy v. Fields
(State), 200 Ariz. 442, 446 ¶ 13, 27 P.3d 799, 803 (App. 2001) (noting that
“when . . . a sentencing or probation provision in [a] plea agreement[]
proves to be illegal and unenforceable,” that provision cannot stand). 1


1      Whether the State may seek to withdraw from a plea agreement
when an added term thereof is stricken is not before us, as Reed-Kaliher
had already served his prison term before the State attempted to add the
marijuana term to his probation conditions. For a discussion of the
circumstances in which the State may withdraw from a plea agreement
after a court strikes a term of the agreement, see State v. Ferrell, ___ Ariz.
___, ___ P.3d ___ (2015), filed contemporaneously with this opinion.




                                        5
                 REED-KALIHER v. HOGGATT (STATE)
                        Opinion of the Court

¶13          The State observes that probation conditions can prohibit a
wide range of behaviors, even those that are otherwise legal, such as
drinking alcohol or being around children. While the court can condition
probation on a probationer’s agreement to abstain from lawful conduct, it
cannot impose a term that violates Arizona law.

¶14         We therefore hold that any probation term that threatens to
revoke probation for medical marijuana use that complies with the terms of
AMMA is unenforceable and illegal under AMMA.

      C.     Harmonizing AMMA’s Immunity Provision with Statutes
             Prohibiting Marijuana Use

¶15           The court of appeals’ dissent reasoned that an existing statute
banning possession or use of narcotic drugs “requires defendants convicted
of enumerated drug offenses and placed on probation to be ‘prohibited
from using any marijuana’” during the term of probation. Reed-Kaliher, 235
Ariz. at 370 ¶ 38, 332 P.3d at 596 (Espinosa, J., dissenting) (quoting A.R.S.
§ 13-3408(G)). The dissent maintained that this provision conflicts with the
immunity provision and that “we could give meaning to both the AMMA
and the more specific drug-sentencing statutes by interpreting the AMMA’s
silence [regarding] probationers [as] assent to the long-standing limitations
on drug use by those convicted of drug-related offenses.” Id.

¶16           Just as AMMA provides immunity for charges of violating
§ 13-3405, which would otherwise subject a person to criminal prosecution
for marijuana use, AMMA also provides immunity for charges of violating
§ 13-3408(G), which might otherwise subject a person to revocation of
probation for marijuana use. 2

¶17           Section 13-3408(G) prohibits the use of marijuana or narcotic
or prescription drugs except as “lawfully administered by a health care
practitioner,” a phrase that suggests that the legislature intended to

2      At least three other statutes contain identical language prohibiting
probationers convicted under those sections from engaging in illegal drug
use: A.R.S. §§ 13-3405(E), 13-3406(D), and 13-3407(I). Our analysis applies
to any statutes containing this language.




                                     6
                  REED-KALIHER v. HOGGATT (STATE)
                         Opinion of the Court

distinguish between illicit use and lawful medicinal use of such drugs.
Medical marijuana use pursuant to AMMA is lawful under Arizona law.
Thus, we harmonize § 13-3408(G) with AMMA by interpreting the former
as barring probationers from illegally using drugs while nonetheless
permitting legal medicinal uses of such drugs, which seems to be the intent
of the statutes. See Estate of Hernandez v. Ariz. Bd. of Regents, 177 Ariz. 244,
249, 866 P.2d 1330, 1335 (1994) (observing that, when possible, we
harmonize “apparently conflicting statutes”); Dietz v. Gen. Elec. Co., 169
Ariz. 505, 510, 821 P.2d 166, 171 (1991) (noting that when “more than one
interpretation [of a statute] is plausible, we ordinarily interpret the statute
in such a way as to achieve the general legislative goals that can be adduced
from the body of legislation in question”).

       D.     Preemption

¶18           Citing State v. Camargo, the State argues that the probation
condition requiring Reed-Kaliher to “obey all laws” requires compliance
with federal laws, including federal drug laws. 112 Ariz. 50, 52, 537 P.2d
920, 922 (1975) (“A court can order as a condition of probation that the
probationer comply with the law, federal as well as state.”). Although a
court may require compliance with federal law as a condition of probation,
federal law does not require the court to do so. Cf. Printz v. United States,
521 U.S. 898, 935 (1997) (“Congress cannot compel the States to enact or
enforce a federal regulatory program.”). AMMA, an Arizona law, now
precludes Arizona courts from conditioning probation on the probationer’s
abstention from medical marijuana use pursuant to AMMA. Federal law
does not require our courts to enforce federal law, and Arizona law does not
permit them to do so in contravention of AMMA. Thus, while the court can
impose a condition that probationers not violate federal laws generally, it
must not include terms requiring compliance with federal laws that
prohibit marijuana use pursuant to AMMA.

¶19           The State suggests that AMMA conflicts with federal law, and
because state officers cannot simultaneously follow both laws, they should
enforce the federal proscriptions on marijuana use pursuant to the
Controlled Substances Act (“CSA”), 21 U.S.C. §§ 801-971, even if doing so
requires them to violate state law. The State is correct in this assertion only
if the CSA preempts AMMA. A federal law can preempt a state law if (1)




                                       7
                   REED-KALIHER v. HOGGATT (STATE)
                          Opinion of the Court

the federal law contains “an express preemption provision,” (2) Congress
has determined it must exclusively govern the field, or (3) the federal and
state law conflict to such an extent that compliance with both is “a physical
impossibility” or the state law “stands as an obstacle to the accomplishment
and execution of the full purposes and objectives of Congress.” Arizona v.
United States, 132 S. Ct. 2492, 2501 (2012) (internal citations and quotation
marks omitted). “In preemption analysis, courts should assume that ‘the
historic police powers of the States’ are not superseded ‘unless that was the
clear and manifest purpose of Congress.’” Id. (quoting Rice, 331 U.S. 218,
230 (1947)).

¶20          Congress itself has specified that the CSA does not expressly
preempt state drug laws or exclusively govern the field:

       No provision of [the subchapter on control and enforcement
       of United States drug laws] shall be construed as indicating
       an intent on the part of the Congress to occupy the field . . . 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 . . .
       and that State law so that the two cannot consistently stand
       together.

21 U.S.C. § 903.

¶21           There is no such conflict here. By not including a prohibition
against AMMA-compliant marijuana use, or in this case by removing the
condition upon Reed-Kaliher’s request, the trial court would not be
authorizing or sanctioning a violation of federal law, but rather would be
recognizing that the court’s authority to impose probation conditions is
limited by statute. Jordan, 120 Ariz. at 98, 584 P.2d at 562.

¶22           We find persuasive the analysis of the Michigan Supreme
Court, which held that the CSA does not preempt a Michigan statute that is
substantially identical to AMMA. See Ter Beek v. City of Wyoming, 846
N.W.2d 531, 536–41 (Mich. 2014). That court reasoned that the statute does
not prevent federal authorities from enforcing federal law—it merely
provides “a limited state-law immunity.” See id. at 537 (emphasis omitted)




                                       8
                 REED-KALIHER v. HOGGATT (STATE)
                        Opinion of the Court

(noting that the statute “does not purport to prohibit federal criminalization
of, or punishment for” use permitted by state law). The manifest purpose
of the CSA was “to conquer drug abuse and to control the legitimate and
illegitimate traffic in controlled substances.” Gonzales v. Raich, 545 U.S. 1,
12 (2005). A state law stands as an obstacle to a federal law “[i]f the purpose
of the [federal law] cannot otherwise be accomplished—if its operation
within its chosen field else must be frustrated and its provisions be refused
their natural effect.” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 373
(2000) (quoting Savage v. Jones, 225 U.S. 501, 533 (1912)).

¶23          The state-law immunity AMMA provides does not frustrate
the CSA’s goals of conquering drug abuse or controlling drug traffic. Like
the people of Michigan, the people of Arizona “chose to part ways with
Congress only regarding the scope of acceptable medical use of marijuana.”
Ter Beek, 846 N.W.2d at 539. Possession and use of marijuana not in
compliance with AMMA remain illegal under Arizona law.

¶24           Nor does the oath of office taken by state officers require them
to condition probation on abstention from AMMA-compliant marijuana
use. All state officers and employees in Arizona, including judges and
prosecutors, swear to “support the Constitution of the United States and
the Constitution and laws of the State of Arizona.” A.R.S. § 38-231(E)–(F).
Under the Supremacy Clause, laws made pursuant to the federal
constitution are part of “the Supreme Law of the Land” and “Judges in
every State shall be bound thereby.” U.S. Const. art. 6, cl. 2. But, as noted
above, nothing in federal law purports to require state judges to include a
prohibition on the use of medical marijuana pursuant to AMMA as a
condition of probation. Because AMMA prohibits such a condition and
federal law does not require it, a state judge does not violate the oath of
office by omitting such a condition.

       E.     Waiver

¶25             Finally, the State argues that Reed-Kaliher’s agreement to the
“obey all laws” term implies a waiver of his right to use marijuana pursuant
to AMMA. But Reed-Kaliher could not have knowingly waived his rights
under AMMA because it did not exist when he entered the plea agreement.
See Ariz. Title Guar. & Trust Co. v. Modern Homes, Inc., 84 Ariz. 399, 402, 330




                                      9
                 REED-KALIHER v. HOGGATT (STATE)
                        Opinion of the Court

P.2d 113, 114 (1958) (“[B]efore a waiver of a right may be inferred, such right
must be in existence at the time the claimed waiver occurred.”). Moreover,
such a waiver would be ineffective because, as noted above, AMMA bars
courts from imposing a probation condition prohibiting the use of medical
marijuana pursuant to AMMA. See State v. Ferrell, ___ Ariz. ___ ¶ 9, ___
P.3d ___ (2015), filed contemporaneously with this opinion.

                             II. CONCLUSION

¶26           For the foregoing reasons, we affirm the opinion of the court
of appeals.




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