Keenan Reed-Kaliher v. State of Arizona

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

KEENAN REED-KALIHER,
Petitioner,

v.

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

and

THE STATE OF ARIZONA,
Real Party in Interest.

No. 2 CA-SA 2014-0015
Filed July 25, 2014

Special Action Proceeding
Cochise County Cause No. CR201000683

JURISDICTION ACCEPTED; RELIEF GRANTED

COUNSEL

Law Office of Thomas C. Holz, Bisbee
By Thomas C. Holz
Counsel for Petitioner
 REED-KALIHER v. HOGGATT
Opinion of the Court

Edward G. Rheinheimer, Cochise County Attorney
By Brian M. McIntyre, Deputy County Attorney, Bisbee
Counsel for State of Arizona

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

OPINION

Chief Judge Eckerstrom authored the opinion of the Court, in which
Judge Kelly concurred and Judge Espinosa dissented.

E C K E R S T R O M, Chief Judge:

¶1 In this special action, petitioner Keenan Reed-Kaliher
challenges the respondent judge’s denial of his motion to modify the
conditions of his probation and allow him to use medical marijuana
consistent with the Arizona Medical Marijuana Act (AMMA), A.R.S.
§§ 36-2801 through 36-2819. For the reasons below, we accept
special action jurisdiction and, because the respondent abused his
discretion, we grant relief. See Ariz. R. P. Spec. Actions 3(c) (special
action relief appropriate when decision constitutes abuse of
discretion).

Factual and Procedural Background

¶2 Pursuant to a plea agreement, Reed-Kaliher was
convicted of possession of marijuana for sale and attempted
possession of a narcotic drug for sale. The respondent judge
accepted a stipulation in the plea agreement pertaining to the
sentences and sentenced Reed-Kaliher to a 1.5-year prison term on
the possession for sale count and suspended the imposition of
sentence on the attempt count, placing Reed-Kaliher on a three-year
term of probation to “commenc[e] upon [his] absolute discharge
from prison.”

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Opinion of the Court

¶3 Reed-Kaliher was released from prison in June 2011 and
began serving the probationary term. Among the conditions of
probation set forth in the Uniform Conditions of Supervised
Probation form that he signed was the requirement that he “[o]bey
all laws” and “[n]ot possess or use illegal drugs, toxic vapors, or
controlled substances, or use or possess any prescription drugs
without a valid prescription.”

¶4 He subsequently obtained a “registry identification
card” from the Arizona Department of Health Services to allow him
to use marijuana under the AMMA. In August 2013, his probation
officer imposed an additional condition of probation, which was
“deemed necessary to implement the conditions imposed by the
Court, and [was] not inconsistent with them,” specifically that he
“not possess or use marijuana for any reason.”

¶5 In December 2013, Reed-Kaliher filed a motion to
modify the conditions of his probation, urging the respondent judge
to “rescind[] the written implementation ordering him not to use
marijuana, because he is licensed by the Arizona Department of
Health Services to use marijuana pursuant to the [AMMA].” After a
hearing on the motion, the judge denied Reed-Kaliher’s motion. He
concluded Reed-Kaliher had “agreed to accept the conditions of
probation imposed” as part of his plea agreement and the additional
condition therefore did not violate the AMMA. He further reasoned
that probationers lose many other rights provided to other citizens
because of their probationary status. Reed-Kaliher thereafter sought
special action relief in this court.

Jurisdiction

¶6 We accept special action jurisdiction in this matter for
several reasons. The issue presented here “involves a pure question
of law in a matter of first impression[,]” and one of statewide
importance. State v. Fields, 232 Ariz. 265, ¶ 6, 304 P.3d 1088, 1090
(App. 2013); Trebesch v. Superior Court, 175 Ariz. 284, 286-87, 855 P.2d
798, 800-01 (App. 1993); see also Ariz. R. P. Spec. Actions 1(a).
Furthermore, Reed-Kaliher has no adequate remedy by appeal, as
the denial of a motion to modify the terms of probation is not an

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Opinion of the Court

appealable order. See State v. Jimenez, 188 Ariz. 342, 344-45, 935 P.2d
920, 922-23 (App. 1996); see also A.R.S. § 13-4033.

Discussion

¶7 Arizona voters passed the AMMA in 2010, adding a
chapter to Title 36 establishing the conditions under which
marijuana may be used medicinally. State v. Okun, 231 Ariz. 462,
¶ 4, 296 P.3d 998, 1000 (App. 2013); see also §§ 36-2801 through 36-
2804.02. Upon the certification by a qualifying physician that a
patient “is likely to receive therapeutic or palliative benefit . . . [for a]
debilitating medical condition,” § 36-2801(18), the AMMA allows
such a patient to obtain a registry identification card and thereby
possess and use limited amounts of marijuana for medicinal
purposes. Okun, 231 Ariz. 462, ¶ 5, 296 P.3d at 1000; see also § 36-
2804.02. Under § 36-2811, cardholders receive “two different
statutory protections”: a rebuttable presumption that the holder’s
possession or use of marijuana is for medical purposes if it is
consistent with the AMMA’s requirements and an immunity from
state prosecution for medical use of marijuana so long as the
cardholder possesses a lawful amount. Fields, 232 Ariz. 265, ¶¶ 13-
14, 304 P.3d at 1092.

¶8 The statutory immunity set forth in § 36-2811(B)(1)
provides that a “registered qualifying patient . . . is not subject to
arrest, prosecution or penalty in any manner, or denial of any right
or privilege, including any civil penalty or disciplinary action by a
court or occupational or professional licensing board or bureau” for
the patient’s “medical use of marijuana pursuant to” the AMMA.
The protections of the AMMA do not apply, however, under
circumstances specified in § 36-2802, including medical use of
marijuana in a correctional facility or in a public place.

¶9 Relying on the plain language of this statutory
immunity, Reed-Kaliher maintains the respondent judge erred in
denying his motion to modify the terms of his probation. He
maintains that the AMMA prohibits a court from denying a person
any privilege based on his medical use of marijuana and that
probation is such a privilege. Therefore, he contends he could not be
barred from such use as a condition of probation.

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Opinion of the Court

¶10 We review a trial court’s imposition of conditions of
probation for an abuse of discretion and generally will not reverse
its imposition of conditions unless the terms “violate fundamental
rights or bear no reasonable relationship whatever to the purpose of
probation over incarceration.” State v. Turner, 142 Ariz. 138, 144, 688
P.2d 1030, 1036 (App. 1984). But, because probation is a matter of
“legislative grace,” a “court’s power with respect to probation is
purely statutory.” State v. Levasseur, 118 Ariz. 597, 598, 578 P.2d
1026, 1027 (App. 1978), disapproved on other grounds by State v.
Mendivil, 121 Ariz. 600, 592 P.2d 1256 (1979); see also Green v. Superior
Court, 132 Ariz. 468, 471, 647 P.2d 166, 169 (1982). A court abuses its
discretion when it makes an error of law. Tobin v. Rea, 231 Ariz. 189,
¶ 14, 291 P.3d 983, 988 (2013).

¶11 The validity of the conditions prohibiting Reed-Kaliher
from possessing or using marijuana for any reason turns on the
interpretation of the immunity provision in the AMMA. “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, ¶ 11, 127 P.3d 873, 875 (2006). “When the language [of the
initiative] is ‘clear and unambiguous,’ and thus subject to only one
reasonable meaning, we [construe it] by applying the language
without using other means of statutory construction.” Id., quoting
Calik v. Kongable, 195 Ariz. 496, ¶ 10, 990 P.2d 1055, 1057 (1999).

¶12 The clear language of the AMMA limits a judge’s
authority to prohibit a probationer such as Reed-Kaliher from using
marijuana, so long as his use is consistent with the AMMA. Reed-
Kaliher was eligible for probation on his attempted possession for
sale conviction. See A.R.S. § 13-3408(A)(2), (D). The AMMA’s
immunity provision states that a cardholder may not be denied a
right or privilege based solely on the protected use or possession of
marijuana in compliance with the AMMA. § 36-2811(B). Thus,
under the express terms of the immunity provision, Reed-Kaliher
could not be deprived of the privilege of probation solely based on
his medical use of marijuana, and a condition of probation
threatening to revoke his privilege for such use cannot be enforced

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Opinion of the Court

lawfully and is invalid.1 See State v. Nelson, 195 P.3d 826, ¶ 27 (Mont.
2008) (concluding Montana’s medical marijuana act, with essentially
the same language as Arizona’s, prohibited condition of probation
limiting medical marijuana use).

¶13 Here, the respondent judge determined that Arizona’s
Uniform Conditions of Supervised Probation, § 6-207 of the Arizona
Code of Judicial Administration and Appendix A thereto, required
him to order Reed-Kaliher to “obey all laws” as a condition of
probation. The respondent concluded further that this condition
prohibited Reed-Kaliher from violating federal laws prohibiting
marijuana use, notwithstanding the provisions of the AMMA. We
cannot agree with the respondent’s conclusion.

¶14 One of the conditions set forth in Appendix A as a
uniform condition of supervised probation is that a probationer
“maintain a crime-free lifestyle by obeying all laws, and not
engaging or participating in any criminal activity.” Ariz. Code of
Jud. Admin. § 6-207 app. A. The AMMA, however, has exempted a
limited use of marijuana for medical purposes from the usual
unlawful status of marijuana use and created a shield against state
action for such use. See § 36-2811(B). As a threshold matter, then, a
probationer violates no state law nor participates in any state
criminal activity by using marijuana in conformity with the AMMA.
Although federal law prohibits the use of marijuana—and Reed-
Kaliher may be subject to federal prosecution or punishment on that
basis—the AMMA prohibits the State of Arizona and any court of
this state from depriving him of the privilege of probation as a
consequence of his protected use of marijuana. Indeed, the
respondent judge characterized his ruling here as enforcement of
state rather than federal law, correctly observing that “[f]ederal
authorities are perfectly able to enforce the United States Code
without the assistance of this court.”

1 The revocation of a cardholder’s probation based on the
medical use of marijuana could not be achieved without subjecting
him to “arrest” and a “penalty.” § 36-2811(B). The express language
of the AMMA likewise forbids state actors from taking such steps.

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Opinion of the Court

¶15 In a similar vein, the state argues that the Supremacy
Clause of the United States Constitution requires a state court to
prohibit marijuana use that is in violation of federal law. The state
does not expressly contend the AMMA is preempted by federal law.
Rather, the state asserts it would violate the respondent judge’s
“oath of office and duty” under the Supremacy Clause to “sanction”
the use of marijuana in violation of federal drug laws. But we
cannot see how a state court’s fidelity to state law in a state
prosecution under a state criminal code and subject to state rules
setting forth probation conditions could violate the Supremacy
Clause unless any of the state laws in question are preempted by
federal law. To address the state’s argument, we therefore must
consider whether the AMMA is preempted by federal law.

State law is preempted by federal law in
three instances: (1) express preemption,
when Congress explicitly defines the extent
to which an enactment preempts state law;
(2) field or implied preemption, when state
law regulates conduct in a field Congress
intended the federal government to occupy
exclusively; and (3) conflict preemption,
when state law actually conflicts with
federal law.

Hutto v. Francisco, 210 Ariz. 88, ¶ 7, 107 P.3d 934, 936 (App. 2005).

¶16 “The structure and limitations of federalism . . . allow
the States ‘great latitude under their police powers to legislate as to
the protection of the lives, limbs, health, comfort, and quiet of all
persons.’” Gonzales v. Oregon, 546 U.S. 243, 270 (2006), quoting
Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996). Thus, we must
presume that “the historic police powers of the States [are] not to be
superseded by” federal law “unless that [is] the clear and manifest
purpose of Congress.” Cipollone v. Liggett Group, Inc., 505 U.S. 504,
516 (1992), quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230
(1947) (alterations in Cipollone).

¶17 In the case of the federal Controlled Substances Act,
Congress not only declined to state it was preempting state law, but

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Opinion of the Court

it expressly provided, “No provision of [the subchapter on control
and enforcement] 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. Such an “[a]ctual
conflict occurs when it is impossible to comply with both state and
federal law ‘or where state law stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of
Congress.’” Hernandez-Gomez v. Volkswagen of Am., Inc., 201 Ariz.
141, ¶ 3, 32 P.3d 424, 425-26 (App. 2001), quoting Freightliner Corp. v.
Myrick, 514 U.S. 280, 287 (1995).

¶18 The AMMA does not create such a conflict with federal
drug laws because it does not purport to make the use of marijuana
lawful under federal law, but rather, as described above, it creates a
state statutory immunity that protects a cardholder from state
penalty for the qualifying use of marijuana under the AMMA. Thus,
although the AMMA protects a person from being penalized or
deprived of a benefit under state law for the medical use of
marijuana under specified circumstances, it does not purport to
affect federal law or the power of federal law enforcement agencies
or courts to enforce that law. 2 See Initiative Measure, Prop. 203,
§ 2(F) (2010) (“States are not required to enforce federal law or
prosecute people for engaging in activities prohibited by federal
law. Therefore, compliance with this act does not put the state of
Arizona in violation of federal law.”), available in Historical and

2Furthermore, the federal government has made clear that it
does not currently intend to occupy the area of state medical
marijuana law. As this court noted in Polk v. Hancock, 680 Ariz. Adv.
Rep. 29, n.7 (Ct. App. Feb. 18, 2014), an August 2013 memorandum
from the United States Department of Justice to the United States
Attorneys explained, inter alia, that “‘enforcement of state law by
state and local law enforcement and regulatory bodies should
remain the primary means of addressing marijuana-related
activity.’”

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Opinion of the Court

Statutory Notes to A.R.S. § 36-2801 et seq.; see also Nelson, 195 P.3d
826, ¶ 37.

¶19 To the extent the state suggests that the respondent
judge nonetheless acquired a duty to enforce federal laws by taking
his oath of office, we do not understand that ritual as altering the
traditional jurisdictional boundaries between state and federal
courts. Nor can the oath be read as imposing any new duty on state
court judges to exercise and enforce federal regulations, a duty
belonging properly to federal officials in federal courts. See New
York v. United States, 505 U.S. 144, 161 (1992) (federal law cannot
compel state to “‘enact and enforce a federal regulatory program’”),
quoting Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264,
288 (1981); see also Printz v. United States, 521 U.S. 898, 935 (1997).

¶20 In support of his ruling, the respondent judge also
maintained Reed-Kaliher had waived any protection under the
AMMA by pleading guilty and accepting probation. Citing State v.
Montgomery, 115 Ariz. 583, 566 P.2d 1329 (1977), the respondent
concluded that if Reed-Kaliher did not agree to comply with the
condition of probation prohibiting him from marijuana use, he could
have rejected probation.

¶21 In Demarce v. Willrich, however, this court noted that the
language on which the respondent judge here relied was dicta and
had “not become the basis for any subsequent Arizona statute or
holding permitting a probationer to elect a potentially shorter
incarceration sentence after finding the terms of his probation too
onerous.” 203 Ariz. 502, ¶ 11, 56 P.3d 76, 79 (App. 2002). We
observed that the statute addressed in Montgomery was repealed in
1978. 203 Ariz. 502, ¶ 13, 56 P.3d at 79. We concluded, contrary to
the dicta in Montgomery, “that a defendant, who is sentenced
according to a plea agreement that includes lifetime probation, does
not have a right to then reject the lifetime probation and . . . elect
incarceration for a lesser term.” 203 Ariz. 502, ¶ 19, 56 P.3d at 80.
Thus, we do not agree that Reed-Kaliher had the unilateral right to
refuse probation if he found any condition of probation imposed
unacceptable.

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Opinion of the Court

¶22 Nor can we say that Reed-Kaliher waived the protection
afforded by the AMMA for the medical use of marijuana by
pleading guilty and accepting a term of probation at the outset.
Assuming arguendo the state could condition a plea agreement on a
defendant’s waiver of the protections of the AMMA without
running afoul of that act,3 Reed-Kaliher could not have intended to
relinquish those protections here because the AMMA did not exist at
the time he entered his plea. Therefore, Reed-Kaliher neither knew
of his future rights under the AMMA nor intentionally relinquished
them. See State v. Williams, 128 Ariz. 415, 416, 626 P.2d 145, 146
(App. 1981) (concluding defendant had not waived statutory right to
credit for presentence incarceration when “the record disclose[d]
nothing from which it c[ould] be inferred that [defendant] knew of
his statutory right . . . and intentionally relinquished it”); see also
Black’s Law Dictionary 1717 (9th ed. 2009) (explaining “[t]he party
alleged to have waived a right must have had both knowledge of the
existing right and the intention of forgoing it”).

¶23 The state further asserts that the respondent judge
properly restricted Reed-Kaliher’s marijuana use because such a
condition of probation was reasonable. Quoting United States v.
Knights, the state correctly points out that many other conditions of
probation “‘deprive the offender of some freedoms enjoyed by law-
abiding citizens.’” 534 U.S. 112, 119 (2001). In his ruling, the
respondent reached a similar conclusion, stating that a person may
be “required to give up” “legal, even constitutional, rights,”
including the right to assemble, drink alcohol, or to be free from
warrantless searches, “in order to be placed on probation.” Yet no
Arizona statute expressly prohibits the state from conditioning the

3The language of § 36-2811(B), which prohibits any state actor
from “den[ying] . . . any right or privilege” to a “registered
qualifying patient,” would appear to prevent state actors from
conditioning any state benefit on the waiver of AMMA rights. If
such a practice were permitted, state officials could so burden the
exercise of the statutory right as to make it illusory—whether by
requiring such a waiver to secure a driver’s license, business license,
professional accreditation, or an educational degree from a state
institution.

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Opinion of the Court

privilege of probation on the waiver of those rights. By contrast, the
voters adopted language in the AMMA that expressly prohibits state
actors from depriving persons of “any . . . privilege” based on the
medical use of marijuana in conformity with the act. § 36-2811(B).

¶24 Thus, although we agree that our trial courts generally
may prohibit the use of marijuana as a reasonable condition of
probation, the AMMA contains no language allowing state officials
to override the act or to otherwise prevent a person from using
marijuana in conformity with the law. Because the plain language of
the AMMA prohibits our state trial courts from disregarding the
terms of the act, the respondent judge abused his discretion in
concluding the prohibition on the use of medical marijuana was a
“lawful and appropriate” condition.

¶25 We recognize the respondent judge’s motivation in
concluding that Reed-Kaliher should be prohibited from using
marijuana on probation. As the respondent specifically found,
Reed-Kaliher has been convicted of an offense involving marijuana,
and his record suggests a long history of drug abuse. We
acknowledge that public policy concerns are raised by allowing
probationers with a history of substance abuse to continue to use
marijuana for any purpose. But, as the Arizona Constitution makes
clear, the power to debate and resolve questions of public policy is
exclusively a legislative one. See Seisinger v. Siebel, 220 Ariz. 85, ¶ 26,
203 P.3d 483, 490 (2009). The people of Arizona may exercise
legislative authority through initiative and referendum. They have
done so here. Our task is to apply the law they have written, not to
second-guess the wisdom of their determinations.4

4Although the parties do not address it, § 13-3408(G) requires
that a person convicted of a drug offense under that section who is
placed on probation be subject to a condition of probation barring
his use of “marijuana, dangerous drug[s], narcotic drug[s] or
prescription-only drug[s] except as lawfully administered by a
health care practitioner.” Reed-Kaliher’s term of probation,
however, arose from his conviction for an attempted violation of § 13-
3408(A)(2), and the state has not argued or established that the
requirement set forth in § 13-3408(G) applied to his term of

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Opinion of the Court

Response to the Dissent

¶26 Our dissenting colleague emphasizes that Reed-Kaliher
stipulated to a term of probation as part of his plea bargain with the
state and therefore implicitly agreed to be bound by the uniform
conditions of supervised probation, which included a condition that
he obey all laws, even federal ones. In the dissent’s view, the
respondent judge did nothing more than enforce Reed-Kaliher’s
own agreement by rejecting his motion. We agree that this is one
logical construction of what occurred. However, a condition of
probation is unenforceable, notwithstanding a defendant’s
agreement to it, if that condition violates our state’s public policy.
See State v. Rutherford, 154 Ariz. 486, 489 n.1, 744 P.2d 13, 16 n.1
(App. 1987); State v. Smith, 129 Ariz. 28, 30, 628 P.2d 65, 67 (App.
1981); accord People v. Avery, 650 N.E.2d 384, 386 (N.Y. 1995); State v.
Brown, 326 S.E.2d 410, 411 (S.C. 1985) (per curiam); State v. Barnett, 3
A.2d 521, 526 (Vt. 1939). This public policy is expressed most clearly
by our state constitution and laws. See Brown, 326 S.E.2d at 412.

¶27 In State v. Sheehan, for example, we concluded the
condition of probation that a defendant “obey all laws” necessarily
excluded civil traffic offenses, based on the public policy reflected by
the decriminalization of such offenses. 167 Ariz. 370, 372, 807 P.2d
538, 540 (App. 1991). Similarly, in State v. Lynch, we held a
defendant’s probation could not be revoked due to adultery in
contravention of the public policy expressed by our then-existing
criminal statute, which prohibited adverse state action in the
absence of a spouse’s complaint. 115 Ariz. 19, 24, 562 P.2d 1386,
1391 (App. 1977).

probation. Cf. State v. Wise, 164 Ariz. 574, 578, 795 P.2d 217, 221
(App. 1990) (concluding fine mandated by § 13-3408(E) not
applicable to those convicted of attempt); cf. also State v. Peek, 219
Ariz. 182, ¶ 15, 195 P.3d 641, 643 (2008) (citing Wise with approval).
Notably, this statute does not necessarily conflict with the public
policy expressed by the AMMA, as it indicates a general intent to
allow probationers to use at least some otherwise unlawful
substances “as lawfully administered by a health care practitioner.”
§ 13-3408(G).

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¶28 We cannot overlook that probation is purely a
legislative creation. See State v. Lewis, 226 Ariz. 124, ¶ 8, 244 P.3d
561, 563 (2011). Therefore, “[a] condition of probation may not
circumvent another statutory scheme.” United States v. Abushaar, 761
F.2d 954, 960 (3d Cir. 1985); see State v. Hylton, 202 Ariz. 325, ¶ 3, 44
P.3d 1005 (App. 2002) (“[A] court’s probation order ‘must conform
to the statutory authorization.’”), quoting State v. Hensley, 201 Ariz.
74, ¶ 21, 31 P.3d 848, 853 (App. 2001). Thus, while we may
otherwise allow a probationer’s rights or privileges to be curtailed
by conditions that are deemed reasonable, see Montgomery, 115 Ariz.
at 584, 566 P.2d at 1330, we cannot do so when “the law in Arizona,”
as here, prohibits the imposition of a particular condition. Id. at 585,
566 P.2d at 1331.

¶29 The dissent posits, however, that the AMMA expresses
no clear intent to override either the uniform conditions or a
particular state statute requiring similar probation conditions for
narcotic-drug offenders, § 13-3408(G). The dissent correctly
observes that we must presumptively attempt to harmonize newer
statutes with previous ones and that we disfavor repeal by
implication. See infra ¶ 38. But we cannot agree that the AMMA is
silent on whether a person may be denied the privilege of probation
for using marijuana in conformity with the AMMA. As discussed
above, the AMMA announces a new public policy that forbids the
state from denying a cardholder “any . . . privilege” based on his use
of medical marijuana. § 36-2811(B).

¶30 Nor does any other language in the AMMA suggest
that the voters either silently intended to exempt probationers from
the benefits of the law, or failed to consider whether to do so. To the
contrary, the AMMA comprehensively contemplates and addresses
the potential friction points between its goals and those of law
enforcement.5 It provides exclusions for people convicted of certain

5For example, the AMMA prohibits the prosecution or
penalization of physicians who certify patients for medical use of
marijuana and caretakers who assist a patient in administering
medical marijuana. § 36-2811(B), (C). It provides a presumption
that individuals are using and possessing medical marijuana

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Opinion of the Court

felony offenses set forth in § 36-2801(7). See §§ 36-2801(5)(c)
(designated caregivers), 36-2804.01(D) (nonprofit dispensary agents).
And, it specifically itemizes those circumstances when the medical
use of marijuana is prohibited, such as in public, on school buses
and grounds, while operating any motor vehicle, and in correctional
facilities. § 36-2802. Thus, although the AMMA excludes prisoners
and certain felons from some of its benefits, it provides no similar
exemption for probationers.

¶31 In sum, the AMMA is a comprehensive scheme that
allows state officials to prohibit a person from “[u]sing marijuana
except as authorized under” the act. § 36-2802(E). The canon of
construction expressio unius est exclusio alterius applies with
particular force in this context, given that Arizona voters were well
aware marijuana would remain criminalized except as specifically
provided in the AMMA. Against this backdrop, it is therefore clear
that neither state prosecutors nor judges may read exceptions into
the law where none exist, thereby contravening the plain terms of
the AMMA and usurping the legislative authority exercised by, and
ultimately reserved for, the people.6

Disposition

¶32 For the reasons stated in this opinion, we accept
jurisdiction of this special action and grant relief.

lawfully if they possess a registry identification card and the
quantity of marijuana in their possession does not exceed the
allowable amount. § 36-2811(A). It specifies that law enforcement
may not use the possession of, or application for, a registry
identification card as evidence generating probable cause to arrest or
as grounds to support a search warrant. § 36-2811(H).
6By concluding both that the AMMA announces a new public
policy that places a substantive restriction on state actors and that
the AMMA is comprehensive in contemplating potential exceptions
to its reach, our decision conflicts with Polk, 680 Ariz. Adv. Rep. 29,
¶ 21, to the extent that case suggests the AMMA provides no blanket
protection to cardholders.

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E S P I N O S A, Judge, dissenting:

¶33 I respectfully disagree with the majority’s conclusion
that the respondent judge erred in prohibiting Reed-Kaliher, a
convicted narcotics trafficker and drug abuser, from possessing and
using marijuana as a term of his probation, even in the face of the
AMMA. And, on the latter point, because Reed-Kaliher stipulated
to his probation, which included terms necessarily prohibiting
marijuana use, there is no need to address, on these facts, either the
question of whether the AMMA prevents a court from imposing a
bar on medical marijuana use as a condition of probation, or the
issue of federal preemption of state drug laws.

¶34 As noted in the recitation of the facts of this matter, the
record shows Reed-Kaliher stipulated to probation in his plea
agreement. In his ruling, the respondent judge pointed out that by
agreeing to probation, Reed-Kaliher had consented to the uniform
conditions of probation, set forth in § 6-207 of the Arizona Code of
Judicial Administration. Those conditions expressly included
“obeying all laws” and not using or possessing illegal drugs or
controlled substances. Ariz. Code of Jud. Admin. § 6-207 app. A.
And Reed-Kaliher further agreed to “[c]omply with any written
directive of the [Adult Probation Department] to enforce compliance
with the conditions of probation.”

¶35 Reed-Kaliher argues, and the majority accepts, that he
did not validly waive his rights under the AMMA. He maintains
that because the AMMA, which had not yet been enacted, was not
expressly addressed in his plea agreement or conditions of
probation, his waiver was not “voluntary and intentional.” A
specific waiver of the protections provided by the AMMA, however,
was not required for the respondent judge to prohibit Reed-Kaliher
from using marijuana—he expressly agreed to obey all laws,
including those governing controlled substances, and to comply
with written directives to enforce compliance with those laws. As
the respondent judge noted, at the time Reed-Kaliher was convicted,
marijuana possession and use was, and continues to be, unlawful
under federal law. See 21 U.S.C. §§ 841(a)(1), 844(a). And, “a state
court may order as a condition of probation that [a] defendant
comply with the law, federal, as well as state.” State v. Marquez-Sosa,

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Opinion of the Court

161 Ariz. 500, 502, 779 P.2d 815, 817 (App. 1989), citing State v.
Camargo, 112 Ariz. 50, 52, 537 P.2d 920, 922 (1975). Thus, there is no
need to address whether the federal prohibition of marijuana
possession and use would itself be a sufficient ground on which a
trial court could prohibit a probationer from using marijuana under
the AMMA; in this case, Reed-Kaliher expressly agreed to accept
that restriction in order to gain the benefits of a plea bargain, and I
see no basis for excluding the federal drug laws from that
agreement. Furthermore, although my colleagues rely on Demarce v.
Willrich, 203 Ariz. 502, 56 P.3d 76 (App. 2002), for the proposition
that Reed-Kaliher did not have the right to refuse probation after he
entered into the plea agreement, see id. ¶ 19, I fail to see how this
undermines his voluntary acceptance of the term prohibiting
marijuana use. Reed-Kaliher knew what the plea agreement’s terms
required and, like Demarce, “certainly had the option to reject the
plea agreement at the outset.” Id. ¶ 15.

¶36 Nor do I agree that a public policy favoring the legal
use of medicinal marijuana necessarily conflicts with a probation
condition prohibiting such use. See State v. Smith, 129 Ariz. 28, 30-31,
628 P.2d 65, 67-68 (App. 1981) (public policy goal of preserving
families not undermined by homestead waiver condition bearing
reasonable nexus to probation goals). 7 Although my colleagues
assert that the AMMA “expressly prohibits the state from
conditioning the privilege of probation on the waiver of those
rights,” nothing in that Act specifically addresses a drug-offending

7Notably, both cases discussed in the majority’s argument on
this point involved a different inquiry from the one conducted here.
In State v. Sheehan, this court evaluated whether a probation
condition requiring defendant to “obey all laws” justified revocation
based on a civil traffic violation. 167 Ariz. 370, 372, 807 P.2d 538, 540
(App. 1991). And State v. Lynch considered whether probation could
be revoked based on adultery where the statutory requirements for
prosecution of that crime had not been met. 115 Ariz. 19, 24, 562
P.2d 1386, 1391 (App. 1977). This case does not require us to
determine what the relevant conditions in the probation agreement
prohibited or whether they had been violated.

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Opinion of the Court

probationer’s use of medical marijuana. I therefore cannot conclude
that allowing a drug-offending defendant to agree not to use
marijuana as a condition of his plea bargain runs afoul of the limited
immunity provision of the AMMA. Indeed, this court has implicitly
determined that the protections of the AMMA may be waived by
plea agreement. Polk v. Hancock, 680 Ariz. Adv. Rep. 29, ¶¶ 25-26 (Ct.
App. Feb. 18, 2014) (trial judge erred in striking stipulated probation
condition prohibiting medicinal marijuana use). That the AMMA
does not specifically exclude probationers from its protections
simply has no bearing on a convicted felon’s decision to voluntarily
enter into an agreement whereby he may avoid additional
incarceration by agreeing to abide by specified laws and restrictions.

¶37 Accordingly, because Reed-Kaliher stipulated to a term
of probation that included restrictions against marijuana, the
question remains one of reasonableness. That standard has been
applied to other probation requirements as well. See State v. Kessler,
199 Ariz. 83, ¶ 21, 13 P.3d 1200, 1205 (App. 2000). In determining
whether a probation condition is permissible, the test “‘is whether
there is a reasonable nexus between the conditions imposed and the
goals to be achieved by the probation.’” Id., quoting State v. Davis,
119 Ariz. 140, 142, 579 P.2d 1110, 1112 (App. 1978); cf. Polk, 680 Ariz.
Adv. Rep. 29, ¶¶ 25-26 (requiring individualized determination of
whether medical marijuana prohibition was reasonable term of
probation). Here, the condition of probation restricting Reed-
Kaliher from possessing or using marijuana is directly related to his
criminal offenses. He pled guilty to attempted possession of a
narcotic drug for sale and possession of marijuana for sale. As the
trial court noted, and the majority concedes, he also has a long
history of drug abuse. Such a condition is therefore relevant to his
offenses and is reasonably related to Reed-Kaliher’s rehabilitation
and protection of the public from additional criminal offenses. See
Kessler, 199 Ariz. 83, ¶ 21, 13 P.3d at 1205. The close relationship
between Reed-Kaliher’s crimes and the challenged condition also
highlights a potential policy problem created by the majority’s
position: prosecutors and courts unable to prohibit marijuana use
may be much less likely to offer or approve plea agreements in
many cases.

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Opinion of the Court

¶38 Finally, although the Act could have expressly excluded
probationers from its protection, as my colleagues point out, I
cannot accept its silence on this critical point as signifying the voters’
intent to allow a convicted drug trafficker and drug abuser to
continue using marijuana while on probation, even within the
purview of the AMMA. This is particularly so in light of A.R.S.
§ 13-3408(G), which requires defendants convicted of enumerated
drug offenses and placed on probation to be “prohibited from using
any marijuana.” And “[t]he law does not favor construing a statute
as repealing an earlier one by implication. Rather, whenever
possible, this court interprets two apparently conflicting statutes in a
way that harmonizes them and gives rational meaning to both.”
Estate of Hernandez v. Ariz. Bd. of Regents, 177 Ariz. 244, 249, 866 P.2d
1330, 1335 (1994) (citations omitted). In this circumstance, we could
give meaning to both the AMMA and the more specific drug-
sentencing statutes by interpreting the AMMA’s silence as to
probationers to signal its assent to the long-standing limitations on
drug use by those convicted of drug-related offenses—an
interpretation that also would avoid the anomalous result reached
by the majority today.

¶39 In any event, because Reed-Kaliher validly agreed to
conditions of probation that prohibit him from using marijuana, it is
not necessary to resolve questions of statutory interpretation here. I
would therefore affirm the respondent judge’s legitimate and
sensible restriction of Reed-Kaliher’s marijuana use pursuant to his
plea agreement, and deny relief on the petition for special action.

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