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 

2
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).

3
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 AMMACompliant 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 AMMAcompliant 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 AMMAcompliant 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.

10