Gaetan H. Bourgoin v. Twin Rivers Paper Company, LLC , 187 A.3d 10 ( 2018 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2018 ME 77Docket: WCB-16-433
Argued: September 13, 2017
Decided: June 14, 2018
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
Majority: SAUFLEY, C.J., and MEAD, GORMAN, HJELM, and HUMPHREY, JJ.
Dissent: JABAR and ALEXANDER, JJ.
Dissent: ALEXANDER, J.
GAETAN H. BOURGOIN
v.
TWIN RIVERS PAPER COMPANY, LLC, et al.
HJELM, J.
[¶1] After sustaining a work-related injury, Gaetan H. Bourgoin was
issued a certification to use medical marijuana as a result of chronic back pain.
He successfully petitioned the Workers’ Compensation Board for an order
requiring his former employer, Twin Rivers Paper Company, LLC, to pay for the
medical marijuana. On this appeal from the decision of the Appellate Division
affirming that award, we are called upon for the first time to consider the
relationship between the federal Controlled Substances Act (CSA) and the
Maine Medical Use of Marijuana Act (MMUMA). We conclude that in the narrow
circumstances of this case—where an employer is subject to an order that
2
would require it to subsidize an employee’s acquisition of medical marijuana—
there is a positive conflict between federal and state law, and as a result, the
CSA preempts the MMUMA as applied here. See 21 U.S.C.S. § 903 (LEXIS
through Pub. L. No. 115-181). We therefore vacate the decision of the Appellate
Division.1
I. BACKGROUND
[¶2] Twin Rivers Paper Company, LLC, and Sedgwick Claims
Management Services (collectively, Twin Rivers) appeal from a decision of the
Workers’ Compensation Board Appellate Division affirming a hearing officer’s
(Pelletier, HO) 2 decree that ordered Twin Rivers to pay the cost of medical
marijuana used by its employee, Gaetan H. Bourgoin.
[¶3] We draw the following facts, which are supported by the record,
from the hearing officer’s decree. See Bailey v. City of Lewiston, 2017 ME 160,
¶ 2, 168 A.3d 762.
1 Twin Rivers also challenges the Appellate Division’s decision on several alternative grounds:
(1) that Twin Rivers is a “private health insurer” and therefore is not required to reimburse an
employee for medical marijuana treatment pursuant to 22 M.R.S. § 2426(2)(A) (2017); (2) that
medical marijuana is not a “reasonable and proper” treatment pursuant to the Maine Workers’
Compensation Act, 39-A M.R.S. § 206 (2017); and (3) that the hearing officer erred by rejecting the
findings of the independent medical examiner, see id. § 312(7) (2017). Because the order requiring
Twin Rivers to pay for Bourgoin’s medical marijuana is barred by the CSA, we need not and do not
reach these other reasons why Twin Rivers contends the order should be set aside.
2 The decree was entered on March 16, 2015, before the change in title from “hearing officer” to
“administrative law judge.” See P.L. 2015, ch. 297 (effective Oct. 15, 2015).
3
[¶4] Bourgoin worked as a paper machine laborer for Fraser Papers,
which was subsequently acquired by Twin Rivers, at a paper mill in Madawaska
from 1980 until 1989, when he sustained a work-related back injury. By
agreement of the employer, Bourgoin was placed on total disability as a result
of the injury. On three occasions, Twin Rivers filed a petition seeking a
reduction in Bourgoin’s incapacity, but each petition was denied, and he
remains on total disability.
[¶5] As a result of his workplace injury, Bourgoin suffers from severe
chronic pain syndrome. Bourgoin consulted with a number of pain
management specialists and attempted a variety of treatments, including
opioid medications, for his pain. Due to adverse side effects of his continued
use of opioids, and on the recommendation of his primary care physician,
Bourgoin stopped using narcotic medications. In January of 2012, Bourgoin
obtained a medical marijuana certification and since then has used medical
marijuana to manage his chronic pain. See 22 M.R.S. §§ 2421 to 2430-B (2017).
[¶6] In February of 2012, Bourgoin filed a “petition for payment of
medical and related services” with the Workers’ Compensation Board seeking
payment from Twin Rivers for the cost of the medical marijuana. Twin Rivers
opposed the petition on the ground, among others, that an order requiring it to
4
pay for Bourgoin’s medical marijuana is barred by the CSA even if his use of
medical marijuana were permitted by the MMUMA. Following a hearing, the
hearing officer granted Bourgoin’s petition in a written decision issued in
March of 2015. Twin Rivers appealed to the Appellate Division, which affirmed
the hearing officer’s decision in August of 2016. We then granted Twin Rivers’
petition for appellate review. See 39-A M.R.S. § 322 (2017); M.R. App. P. 23
(Tower 2016).3
II. DISCUSSION
[¶7] Twin Rivers argues that the Controlled Substances Act, 21 U.S.C.S.
§§ 801-904 (LEXIS through Pub. L. No. 115-181), preempts application of the
MMUMA as a predicate for an order that would compel Twin Rivers to
reimburse Bourgoin for the use of medical marijuana. Federal preemption is a
question of law that we review de novo. Guardianship of Smith, 2011 ME 51,
¶ 10, 17 A.3d 136.
A. Preemption Principles
[¶8] The preemption analysis must begin with the Supremacy Clause of
the United States Constitution, which “unambiguously provides that if there is
3 The restyled Maine Rules of Appellate Procedure do not apply because this appeal was filed
prior to September 1, 2017. See M.R. App. P. 1 (restyled Rules).
5
any conflict between federal and state law, federal law shall prevail.” Gonzales
v. Raich, 545 U.S. 1, 29 (2005); see U.S. Const. art. VI, cl. 2 (“This Constitution,
and the Laws of the United States . . . shall be the supreme Law of the Land.”).
There are two “cornerstones” that guide our preemption analysis: first, “the
ultimate touchstone in every pre-emption case” is Congress’s purpose in
enacting the federal law; and second, “in all pre-emption cases, and particularly
in those in which Congress has legislated in a field which the States have
traditionally occupied, we start with the assumption that the historic police
powers of the States were not to be superseded by the Federal [law] unless that
was the clear and manifest purpose of Congress.” Wyeth v. Levine, 555 U.S. 555,
565 (2009) (alterations omitted) (citations omitted) (quotation marks
omitted). Implementation of these principles serves to retain the
“constitutionally mandated balance of power” between state and federal
government. Gregory v. Ashcroft, 501 U.S. 452, 458 (1991) (quotation marks
omitted).
[¶9] Federal law can preempt state law in three ways: first, by express
preemption, where Congress expressly states that federal law preempts the
state law; second, by field preemption, where Congress explicitly or implicitly
leaves “no room” for state law, or where federal law is “so dominant” that it
6
“will be assumed to preclude enforcement” of the state law; and third, by
conflict preemption, where the state law “actually conflicts with federal law.”
Hillsborough Cty. v. Automated Med. Labs., Inc., 471 U.S. 707, 713 (1985)
(citations omitted); see also Arizona v. United States, 567 U.S. 387, 398-400
(2012); Guardianship of Smith, 2011 ME 51, ¶ 10, 17 A.3d 136. It is the third
type of preemption—conflict preemption—that is at issue here.
[¶10] Conflict preemption arises in two circumstances. The first is
where “compliance with both federal and state [law] is a physical
impossibility,” see Hillsborough Cty., 471 U.S. at 713 (citations omitted)
(quotation marks omitted), because federal and state law “irreconcilabl[y]
conflict” with one another, see Barnett Bank, N.A. v. Nelson, 517 U.S. 25, 31
(1996). Second, conflict preemption occurs where “state law stands as an
obstacle to the accomplishment and execution of the full purposes and
objectives of Congress.” Hillsborough Cty., 471 U.S. at 713 (quotation marks
omitted); see also Arizona, 567 U.S. at 399.
[¶11] Here, Congress expressly regulated the consequence of any conflict
that arises between the CSA and state law by including the following provision
in the CSA:
No provision of this title shall be construed as indicating an
intent on the part of the Congress to occupy the field in which that
7
provision operates, including criminal penalties, 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 of this title and that State law so that the two
cannot consistently stand together.
21 U.S.C.S. § 903 (emphasis added). Through this statutory provision, Congress
has eliminated field preemption—but it has preserved the supremacy of the
CSA where its provisions conflict with state law in a way that makes compliance
with the requirements of both impossible. See Freightliner Corp. v. Myrick,
514 U.S. 280, 287 (1995); Robards v. Cotton Mill Assocs., 677 A.2d 540, 544
(Me. 1996). In this way, Congress has specified that the principles of conflict
preemption are to be invoked to determine if state laws must yield to the CSA.
Consequently, when framed in terms of the conflict preemption rubric, the
dispositive question presented here is whether Twin Rivers is necessarily in
violation of the CSA if it were to comply with the Board’s order to pay for the
medical marijuana that Bourgoin is authorized to use pursuant to the MMUMA.
B. The Controlled Substances Act
[¶12] Nearly half a century ago, the United States Congress enacted the
Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.
L. No. 91-513, 84 Stat. 1236 (LEXIS). Subchapter I of the Act, which was Title II
in the original legislation, constitutes the Controlled Substances Act, 21 U.S.C.S.
8
§§ 801-904, which establishes laws pertinent to drug control and enforcement.
See Pub. L. No. 91-513, §§ 100-709, 84 Stat. 1236, 1242-1284. The United
States Supreme Court has characterized the CSA as “a closed regulatory system
making it unlawful to manufacture, distribute, dispense, or possess any
controlled substance except in a manner authorized by the CSA.” Raich,
545 U.S. at 13; see also 21 U.S.C.S. § 801(1)-(6) (establishing Congressional
“findings and declarations” regarding controlled substances); United States v.
Moore, 423 U.S. 122, 134-35 (1975) (discussing the legislative history of the
CSA).
[¶13] The CSA classifies substances subject to that legislation into five
schedules that are differentiated based on three factors: their respective
potential for abuse, the existence—or absence—of their currently accepted
medical use, and risks they pose even when used under medical supervision.
See 21 U.S.C.S § 812(a), (b). Marijuana is classified as a Schedule I drug, see id.
§ 812(c)(Sched. I)(c)(10), which is the category of substances that, as
determined by Congress, have a high potential for abuse, do not have a
currently accepted medical use for treatment, and pose unacceptable safety
9
risks even under medical supervision, see id. § 812(b)(1)(A)-(C).4 This means
that, with one exception that is not applicable here, see infra n.5, federal law
bars the prescribed use of marijuana—and of any other Schedule I drug—even
in a state with local laws allowing the medical use of marijuana. See id.
§§ 812(b)(1)(A)-(C) (listing the “findings” required to classify a substance as a
Schedule I drug), 829 (establishing parameters for prescriptions of schedule
II-V drugs); see also Raich, 545 U.S. at 14, 27; United States v. Oakland Cannabis
Buyers’ Coop., 532 U.S. 483, 494 (2001); Mont. Caregivers Ass’n, LLC v. United
States, 841 F. Supp. 2d 1147, 1149-50 (D. Mont. 2012); Ross v. RagingWire
Telecomms., Inc., 174 P.3d 200, 204 (Cal. 2008); People v. Crouse, 388 P.3d 39,
41-42 (Colo. 2017).
[¶14] Although the CSA requires periodic updates of the schedules of
controlled substances by the United States Attorney General, see 21 U.S.C.S.
§§ 811, 812(a), marijuana has remained a Schedule I drug ever since the CSA
was enacted in 1970. See Raich, 545 U.S. at 15 n.23 (discussing the history of
challenges to reclassify marijuana from 1972 through 2001). This is true
notwithstanding efforts by some to reclassify it—including, most recently,
4 Substances listed in the other four schedules are deemed to present lesser concerns in relation
to one or more of the three criteria used for categorization purposes. See 21 U.S.C.S. § 812(b)(2)-(5)
(LEXIS through Pub. L. No. 115-181).
10
2016 denials of a challenge filed in 2011, see Denial of Petition to Initiate
Proceedings to Reschedule Marijuana, 81 Fed. Reg. 53,687, 53,688-53,766
(Aug. 12, 2016), and in 2009, see Denial of Petition to Initiate Proceedings to
Reschedule Marijuana, 81 Fed. Reg. 53,767, 53,767-53,845 (Aug. 12, 2016). See
also Americans for Safe Access v. Drug Enf’t Admin., 706 F.3d 438, 440-41, 452
(D.C. Cir. 2013) (affirming the denial of a petition to reclassify marijuana in a
less restrictive schedule); Washington v. Sessions, 17 Civ. 5625 (AKH), 2018 U.S.
Dist. LEXIS 30586, at *5-7 (S.D.N.Y. Feb. 26, 2018) (summarizing the procedure
for petitioning for reclassification of a drug, including judicial review of the
determination, and recent attempts at rescheduling the classification of
marijuana); Denial of Petition to Initiate Proceedings to Reschedule Marijuana,
76 Fed. Reg. 40,551, 40,551-40,589 (July 8, 2011).
[¶15] Because marijuana is a Schedule I substance, the CSA makes it a
crime to knowingly or intentionally “manufacture, distribute, or dispense, or
possess with intent to manufacture, distribute, or dispense” marijuana,
21 U.S.C.S. § 841(a)(1), as well as to “knowingly or intentionally . . . possess a
controlled substance,” id. § 844(a). 5 Further, and important to the question
5 These prohibitions are subject to one exception, namely, the use of marijuana in research
projects approved by the government—a circumstance not present here. See 21 U.S.C.S. § 823(f)
(LEXIS through Pub. L. No. 115-181); United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483,
490 (2001) (“For marijuana (and other drugs that have been classified as ‘schedule I’ controlled
11
presented here, a federal prosecution can be directed against a “principal,”
which is defined as any individual who “commits an offense against the United
States or aids, abets, counsels, commands, induces or procures its commission,”
18 U.S.C.S. § 2(a) (LEXIS through Pub. L. No. 115-181) (emphasis added).
Section 2 “reflects a centuries-old view of culpability: that a person may be
substances), there is but one express exception, and it is available only for Government-approved
research projects, [section] 823(f).”).
We note that section 844(a) of the CSA creates another exception to criminal liability for
possession of scheduled drugs, but that exception is inapplicable to marijuana. Pursuant to that
exception, possession of a controlled substance is permitted if it “was obtained directly, or pursuant
to a valid prescription or order, from a practitioner, while acting in the course of [that practitioner’s]
professional practice.” 21 U.S.C.S. § 844(a) (LEXIS through Pub. L. No. 115-181); see also id. § 802(21)
(LEXIS through Pub. L. No. 115-181) (defining “practitioner”). This exception does not extend to the
possession of marijuana, however, because, by categorizing it as a Schedule I drug, Congress has
determined that marijuana has “no currently accepted medical use in treatment” and that there is “a
lack of accepted safety for use of the drug or other substance under medical supervision.” Id.
§ 812(b)(1)(B)-(C) (LEXIS through Pub. L. No. 115-181); see also Oakland Cannabis Buyers’ Coop.,
532 U.S. at 491 (stating that, as designated in the CSA, “marijuana has ‘no currently accepted medical
use’ at all” (quoting 21 U.S.C.S. § 812 (LEXIS through Pub. L. No. 115-181))); see also Gonzales v.
Oregon, 546 U.S. 243, 269 (2006) (stating that “Congress’ express determination that marijuana had
no accepted medical use foreclosed any argument about statutory coverage of drugs available by a
doctor’s prescription”); Gonzales v. Raich, 545 U.S. 1, 24 (2005) (“The [CSA] regulatory scheme is
designed to foster the beneficial use of those medications [listed in Schedules II through V], to prevent
their misuse, and to prohibit entirely the possession or use of substances listed in Schedule I, except
as a part of a strictly controlled research project.”); United States v. Harvey, 794 F. Supp. 2d 1103,
1105-07 (S.D. Cal. 2011) (concluding that, under California law, a “doctor’s recommendation” for use
of medical marijuana is not a “valid prescription or order” under section 844(a) of the CSA), aff’d, 659
F.3d 1272, 1274 (9th Cir. 2011) (with an “addition [that] [w]hat-ever else ‘order’ might mean under
[section] 844(a) of the [CSA], it does not include a mere recommendation from a physician pursuant
to the [California] Compassionate Use Act”). Further, the lawful parameters for prescribing
controlled drugs or substances pursuant to the CSA do not extend to Schedule I drugs or substances.
See 21 U.S.C.S. § 829 (LEXIS through Pub. L. No. 115-181).
Thus, a “written certification” for medical marijuana authorized by the MMUMA, 22 M.R.S.
§§ 2422(16), 2423-B (2017), even when issued by a medical “practitioner” as defined by the CSA, 21
U.S.C.S. § 802(21), or a “medical provider” as defined by the MMUMA, 22 M.R.S. § 2422(4-C) (2017),
is not a “valid prescription or order” that would exempt the resulting marijuana possession from the
purview of the CSA.
12
responsible for a crime he has not personally carried out if he helps another to
complete its commission.” Rosemond v. United States, 134 S. Ct. 1240, 1245
(2014). As the Rosemond Court recognized, “almost every court of appeals has
held [that] a defendant can be convicted as an aider and abettor without proof
that he participated in each and every element of the offense.” Id. at 1246(quotation marks omitted) (alteration omitted). Thus, “a person is liable under
[section] 2 for aiding and abetting a crime if (and only if) he (1) takes an
affirmative act in furtherance of that offense, (2) with the intent of facilitating
the offense’s commission.” Id. at 1245.
[¶16] The mens rea required for aiding and abetting is an “intent [that]
must go to the specific and entire crime charged,” such as “when a person
actively participates in a criminal venture with full knowledge of the
circumstances constituting the charged offense.” Id. at 1248-49. Put another
way, “for purposes of aiding and abetting law, a person who actively
participates in a criminal scheme knowing its extent and character intends that
scheme’s commission,” and, on that basis, is criminally liable. Id. at 1249(emphasis added); see also id. at 1250 (“The law does not, nor should it, care
whether [the defendant] participates with a happy heart or a sense of
foreboding. Either way, [the defendant] has the same culpability, because
13
either way [the defendant] has knowingly elected to aid in the commission of a
[crime].” (emphasis added)). Therefore, were Twin Rivers to comply with the
administrative order by subsidizing Bourgoin’s use of medical marijuana, it
would be engaging in conduct that meets all of the elements of criminal aiding
and abetting as defined in section 2(a).6
6 Title 18 U.S.C.S. § 2 (LEXIS through Pub. L. No. 115-181) contains two separate bases on which
a third party may be held criminally liable. As discussed in the text, section 2(a) imposes liability
upon a person who aids and abets another person in committing the predicate crime. See supra
¶¶ 15-16. Section 2(b), in contrast, criminalizes the conduct of any individual who “willfully causes
an act to be done which if directly performed by [that person] or another would be an offense against
the United States.” (Emphasis added).
Although, in its 2014 opinion, the Rosemond Court addressed the mens rea requirement for aiding
and abetting by citing generally to section 2, the statutory language that it quoted and substantively
analyzed is found specifically in section 2(a). See Rosemond v. United States, 134 S. Ct. 1240, 1243-45
(2014). Section 2(a) does not require “willful[]” conduct because facilitation of the activity with
knowledge of its illegal nature is sufficient to form a basis for criminal liability. See id. at 1248-50;
see also, e.g., United States v. Slatten, 865 F.3d 767, 793 (D.C. Cir. 2017) (“To establish aiding and
abetting, the government had to prove, beyond a reasonable doubt, that [the defendant] intentionally
‘facilitated any part of the criminal venture,’ with enough ‘knowledge of the crime to enable [the
defendant] to make the relevant legal (and indeed, moral) choice’ to opt out instead.” (quoting
Rosemond, 134 S. Ct. at 1246, 1249) (alterations omitted)); United States v. Ford, 821 F.3d 63, 69
(1st Cir. 2016) (“The words ‘aids [and] abets’ . . . all suggest that a person violates section 2 only if the
person has ‘chosen, with full knowledge, to participate in the illegal scheme.’” (quoting Rosemond,
134 S. Ct. at 1250) (emphasis added)); United States v. Encarnación-Ruiz, 787 F.3d 581, 589-91
(1st Cir. 2015) (discussing the applicability of Rosemond to the crime of aiding and abetting another
person’s criminal conduct and stating that section 2(a) contains no explicit mens rea requirement
but that courts have imposed a “knowledge” element); United States v. Watson, Nos. 3:11-CR-079 and
3:15-CV-044, 2016 U.S. Dist. LEXIS 88180, at *14 (S.D. Ohio July 7, 2016) (concluding “that [section]
2(a) describes an ‘inchoate’ offense, or, as Justice Kagan writes in Rosemond, it codifies the ‘common-
law standards for accomplice liability.’ Section 2(b), in contrast, does describe a substantive
offense.”). Gauged by the language of section 2(a) and these judicial explanations of the criminal
exposure created by that statute, Twin Rivers would act in contravention of the CSA if it were to fund
Bourgoin’s acquisition of medical marijuana.
Justice Jabar’s dissenting opinion cites to section 2 generally but draws its analysis on the element
of willfulness that is found in section 2(b) and not in section 2(a), and, on that basis, concludes that
Twin Rivers would fall beyond that statute’s reach. See Jabar, J., Dissenting Opinion ¶¶ 40-45. This
14
[¶17] It also bears noting that aside from the exposure to a federal
conviction itself, the penalties for violation of the CSA can be significant.
Pursuant to the least severe penalty range for a violation of section 844—and,
consequently, for aiding or abetting another person’s violation of section 844—
the sentence, at minimum, is a mandatory fine of $1,000, and it may also include
as much as one year of incarceration, with an even greater sentence if certain
aggravating factors are present, such as a prior conviction for any drug offense,
including offenses established by the CSA. See 21 U.S.C.S. § 844(a); see also id.§ 841(b)(1)(A) (enhancing a mandatory sentence based on prior convictions of
“felony drug offenses” to a range of at least twenty years in prison to a life term).
C. The CSA and Maine’s Medical Marijuana Law
[¶18] This description of the scope and effect of federal regulation of
marijuana brings us to the point where the CSA and Maine law intersect. As
relevant to this case, the Maine Medical Use of Marijuana Act, 22 M.R.S. §§ 2421
formulation of liability is entirely different from that set out in section 2(a), addressed in the text, see
supra ¶¶ 15-16, which is based on conduct that aids and abets another’s criminal activity.
Therefore, irrespective of whether Twin River’s subsidization of Bourgoin’s medical marijuana
would expose Twin Rivers to prosecution pursuant to section 2(b), that conduct would nonetheless
aid and abet Bourgoin’s violation of the CSA and render Twin Rivers criminally liable pursuant to
section 2(a).
15
to 2430-B, allows a “qualifying patient”7 such as Bourgoin to possess a limited
amount of marijuana for medical use. Id. §§ 2422(9), 2423-A(1) (authorizing
the possession of marijuana). The written certification by a medical provider,
which is effective for one year, is based on the professional’s opinion that the
“qualifying patient is likely to receive therapeutic benefit” from the medical
marijuana used “to treat or alleviate the patient’s debilitating medical
condition.” Id. § 2423-B.
[¶19] These conflicting federal and state laws, and their embodiment of
competing policies and underlying conclusions about the efficacy of marijuana
as a legitimate therapeutic substance, frame the narrow issue that is central to
this case: given this network of statutes, can Twin Rivers be required to pay for
Bourgoin’s acquisition and use of marijuana—conduct that is proscribed by
federal law but allowed by the State because a MMUMA certification had been
issued to him?
[¶20] Compliance with both is an impossibility. Were Twin Rivers to
comply with the hearing officer’s order and knowingly reimburse Bourgoin for
the cost of the medical marijuana as permitted by the MMUMA, Twin Rivers
7 A “qualifying patient” is “a person who has been diagnosed by a medical provider as having a
debilitating medical condition and who possesses a valid written certification regarding medical use
of marijuana in accordance with section 2423-B.” 22 M.R.S. § 2422(9) (2017).
16
would necessarily engage in conduct made criminal by the CSA because Twin
Rivers would be aiding and abetting Bourgoin—in his purchase, possession,
and use of marijuana—by acting with knowledge that it was subsidizing
Bourgoin’s purchase of marijuana. See 18 U.S.C.S. § 2(a); 21 U.S.C.S. § 844(a);
Rosemond, 134 S. Ct. at 1248-50; see also, e.g., United States v. Pinillos-Prieto,
419 F.3d 61, 63-66 (1st Cir. 2005) (describing a third-party intermediary drug
transaction that resulted in guilty verdicts for aiding and abetting); United
States v. Dingle, 114 F.3d 307, 309-12 (D.C. Cir. 1997) (affirming the defendant’s
conviction for aiding and abetting illegal drug possession).8 Conversely, if Twin
Rivers complied with the CSA by not reimbursing Bourgoin for the costs of
medical marijuana, Twin Rivers would necessarily violate the MMUMA-based
order of the hearing officer.
[¶21] Several courts have held that a consumer’s state-law-compliant
choice to use medical marijuana does not trigger the limited preemption
provision of section 903. See, e.g., Reed-Kaliher v. Hoggatt, 347 P.3d 136, 141-42
(Ariz. 2015); Ter Beek v. City of Wyoming, 846 N.W.2d 531, 537-38 (Mich. 2014);
8
Furthermore, although Justice Jabar’s dissenting opinion, see Jabar, J., Dissenting Opinion
¶¶ 45-46, draws on the hypothetical situation posed in Rosemond, where a third-party gun store
owner knows but does not care how an illegally sold gun will be used, Twin Rivers would not be
“incidentally facilitat[ing] a criminal venture” but rather would be “actively participat[ing] in it” by
knowingly paying for Bourgoin’s purchase and possession of medical marijuana. Rosemond, 134 S. Ct.
at 1249 n.8.
17
Qualified Patients Ass’n v. City of Anaheim, 187 Cal. App. 4th 734, 757 (Cal.
Ct. App. 2010). This is because state laws, such as the MMUMA, provide safe
harbor from state prosecution, but do not—and cannot—create a “state right
to commit a federal crime,” meaning that the state law protections have no
bearing on federal criminalization or exposure to federal prosecution for that
conduct. Mont. Caregivers Ass’n, LLC, 841 F. Supp. 2d at 1150; see also Raich,
545 U.S. at 26-27; Garcia v. Tractor Supply Co., 154 F. Supp. 3d 1225, 1229-30
(D.N.M. 2016); Qualified Patients Ass’n, 187 Cal. App. 4th at 757; Ter Beek, 846
N.W.2d at 540. This case, however, does not call for us to determine whether
that legal analysis would protect the MMUMA generally. The cases of broader
application, however, help to reveal the critical point that, in the case before us,
the Appellate Division, by affirming an order issued by the hearing officer,
would require Twin Rivers to engage in conduct that constitutes a violation of
the CSA.
[¶22] The preemptive effect of the CSA on state marijuana laws has been
addressed in several cases involving circumstances similar to the one
presented here, where a party—such as Twin Rivers—was confronted with a
mandate to engage in conduct that would be violative of the CSA. Two courts,
for example, have held that a state law authorizing medical marijuana use does
18
not require an employer to treat an employee’s medical use of marijuana as a
reasonable workplace accommodation. See Garcia, 154 F. Supp. 3d at 1230;
Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 230 P.3d 518, 536
(Or. 2010). In Garcia, an employee asserted that his termination from
employment based on a positive test for cannabis metabolites was a form of
unlawful discrimination because he was using medical marijuana for a
disabling medical condition. 154 F. Supp. 3d at 1227. The court granted the
employer’s motion to dismiss the complaint because, in that context, the CSA
preempted New Mexico’s medical marijuana law. Id. at 1229-30. In part, the
court reasoned that “[t]o affirmatively require [the employer] to accommodate
[the employee’s] illegal drug use would mandate [the employer] to permit the
very conduct the CSA proscribes.” Id. at 1230 (emphasis added).
[¶23] Similarly, the Oregon Supreme Court has held that Oregon’s
medical marijuana law did not require an employer to accommodate an
employee’s use of medical marijuana pursuant to the principle of obstacle
preemption, a form of conflict preemption, see supra ¶ 10, and therefore that
“[t]o the extent that [the state medical marijuana law] affirmatively authorizes
the use of medical marijuana, federal law preempts that subsection, leaving it
without effect.” Emerald Steel Fabricators, Inc., 230 P.3d at 529 (quotation
19
marks omitted); see also Washburn v. Columbia Forest Prods., Inc., 134 P.3d 161,
167-68 (Or. 2006) (Kistler, J., concurring) (stating that “[t]he fact that the state
may choose to exempt medical marijuana users from the reach of the state
criminal law does not mean that the state can affirmatively require employers
to accommodate what federal law specifically prohibits”).
[¶24] As these cases demonstrate, a person’s right to use medical
marijuana cannot be converted into a sword that would require another party,
such as Twin Rivers, to engage in conduct that would violate the CSA.
[¶25] In a third case of relevance, although presenting a very different
factual situation, the Supreme Court of Colorado considered whether the
Colorado medical marijuana law—which is now part of that state’s
Constitution, see Colo. Const. art. XVIII, § 14—may be enforced in a way that
would violate the CSA. Crouse, 388 P.3d at 40. The Colorado law required law
enforcement officers to return seized medical marijuana if the person whose
marijuana had been seized was later acquitted of the underlying state drug
charge. Id. at 40-41. The officers declined to comply with that law because they
claimed that, by doing so, they would be distributing marijuana in violation of
the CSA. Id. at 41. The court held that “[b]ecause compliance with one law
necessarily requires noncompliance with the other, there is a positive conflict
20
between [the state constitution] and the CSA such that the two cannot
consistently stand together.” Id. at 42 (quotation marks omitted). Analytically,
there is no difference between the circumstances of Crouse and this case:
Compelling an employer to subsidize an employee’s medical marijuana will
require the employer to commit a federal crime—aiding or abetting the
distribution and possession of marijuana, see 18 U.S.C.S. § 2(a); 21 U.S.C.S.
§ 844(a)—just as Colorado law would have required law enforcement officers
to distribute drugs in violation of the CSA.
[¶26] In affirming the hearing officer’s decision, the Appellate Division9
explicitly relied on the Department of Justice’s 2009 “Ogden Memo,” which
assigned low priority to the prosecution of medical-marijuana-based violations
of federal drug laws. David W. Ogden, Deputy Att’y Gen., U.S. Dep’t of Justice,
Memorandum for Selected United States Attorneys: Investigations and
Prosecutions in States Authorizing the Medical Use of Marijuana 1-2 (Oct. 19,
2009); see also Noll v. Lepage Bakeries, Inc., Me. W.C.B. No. 16-25, ¶¶ 14-15
(App. Div. 2016). Any reliance on this internal departmental policy, however,
9 In its preemption analysis set out in the decision it issued in this case, the Appellate Division
incorporated a discussion found in a decision issued the same day in a different case, Noll v. Lepage
Bakeries, Inc., Me. W.C.B. No. 16-25, ¶¶ 11-15 (App. Div. 2016). We therefore address the Board’s
reasoning as described in the latter case.
21
is entirely misplaced. Such a policy is transitory, as is irrefutably demonstrated
by its recent revocation by the current administration.10
[¶27] Even more significantly, the Ogden Memo itself made clear that it
was directed only to the question of enforcement of laws but did nothing to
challenge their existence. David W. Ogden, Deputy Att’y Gen., U.S. Dep’t of
Justice, Memorandum for Selected United States Attorneys: Investigations and
Prosecutions in States Authorizing the Medical Use of Marijuana 1; see United
States v. Hicks, 722 F. Supp. 2d 829, 833-34 (E.D. Mich. 2010) (addressing the
DOJ memoranda and concluding that the “[DOJ]’s discretionary decision to
direct its resources elsewhere does not mean that the federal government now
lacks the power to prosecute those who possess marijuana”). In fact, the Ogden
Memo expressly states that it merely provided “guidance regarding resource
10 That federal policy change occurred in early 2018, when the United States Attorney General
issued a memorandum declaring that “previous nationwide guidance specific to marijuana
enforcement is unnecessary and is rescinded, effective immediately.” Jefferson B. Sessions III, Att’y
Gen., U.S. Dep’t of Justice, Memorandum for All United States Attorneys: Marijuana Enforcement
(Jan. 4, 2018). This rescinded prosecutorial policies that had not included medical marijuana among
its enforcement priorities. See James M. Cole, Deputy Att’y Gen., U.S. Dep’t of Justice, Memorandum
for All United States Attorneys: Guidance Regarding Marijuana Enforcement (Aug. 29, 2013); James
M. Cole, Deputy Att’y Gen., U.S. Dep’t of Justice, Memorandum for United States Attorneys: Guidance
Regarding the Ogden Memo in Jurisdictions Seeking to Authorize Marijuana for Medical Use (June 29,
2011); David W. Ogden, Deputy Att’y Gen., U.S. Dep’t of Justice, Memorandum for Selected United
States Attorneys: Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana
1-2 (Oct. 19, 2009) (stating that the “pursuit of [the Department’s] priorities should not focus federal
resources in . . . States on individuals whose actions are in clear and unambiguous compliance with
existing state laws providing for the medical use of marijuana”).
22
allocation [and] does not ‘legalize’ marijuana or provide a legal defense to a
violation of federal law. . . . Nor does clear and unambiguous compliance with
state law . . . create a legal defense to a violation of the [CSA].” David W. Ogden,
Deputy Att’y Gen., U.S. Dep’t of Justice, Memorandum for Selected United States
Attorneys: Investigations and Prosecutions in States Authorizing the Medical
Use of Marijuana 2; see also Mont. Caregivers Ass’n, LLC, 841 F. Supp. 2d at
1148-49 (“A reasonable person, having read the entirety of the Ogden Memo,
could not conclude that the federal government was somehow authorizing the
production and consumption of marijuana for medical purposes. Any
suggestion to the contrary defies the plain language of the Memo.”). Therefore,
even if the policy expressed in the Ogden Memo were alive today, it could not
weaken the conclusion that there is a positive conflict between the CSA and the
MMUMA as applied here.
[¶28] Most importantly, however, the magnitude of the risk of criminal
prosecution is immaterial in this case. Prosecuted or not, the fact remains that
Twin Rivers would be forced to commit a federal crime if it complied with the
directive of the Workers’ Compensation Board.11 See Skinner v. Ry. Labor Execs.’
11 The Board also relied on two decisions issued by the New Mexico intermediate appeals court
in cases that raised the type of issue presented here, namely, whether the New Mexico Workers’
Compensation Act required an employer to reimburse an eligible employee for the cost of medical
marijuana that the employee was permitted to use pursuant to New Mexico’s medical marijuana act.
23
Ass’n, 489 U.S. 602, 651 (1989) (Marshall, J., dissenting) (“The absence of
prosecutions to date . . . hardly proves that prosecutors will not avail
themselves [of the applicable law] in the future.”).
III. CONCLUSION
[¶29] Through its enactment of the MMUMA, the Maine Legislature has
exempted qualifying patients and other specified individuals from state
prosecution that otherwise could arise from the medical use of marijuana. The
Legislature, however, does not have the power to change or restrict the
application of federal law that positively conflicts with state law. See U.S. Const.
art. VI, cl. 2. So long as marijuana remains a Schedule I substance under the
CSA, see 21 U.S.C.S. § 812(c)(Sched. I)(c)(10), an employer that is ordered to
compensate an employee for medical marijuana costs is thereby required to
commit a federal crime defined by the CSA. See 18 U.S.C.S. § 2(a); 21 U.S.C.S.
§ 844(a). This creates a positive conflict between the CSA and this application
See Lewis v. Am. Gen. Media, 355 P.3d 850 (N.M. Ct. App. 2015); Vialpando v. Ben’s Auto Servs.,
331 P.3d 975 (N.M. Ct. App. 2014). In the earlier of those cases the court declined to reach the
question of federal preemption, concluding in effect that the employer had not preserved the issue.
Vialpando, 331 P.3d at 979-80. In the second case, the court, relying in part on Vialpando—an opinion
that did not reach the merits of the issue—rejected the contention that the CSA trumped any
requirement that the employer subsidize the cost of medical marijuana because, the court reasoned,
the DOJ enforcement memos rendered the prospect of prosecution under the CSA to be speculative.
Lewis, 355 P.3d at 858-59. To the limited extent these cases address the merits of the preemption
issue, the analysis is less than compelling, and we decline to follow their lead.
24
of the MMUMA. See 21 U.S.C.S. § 903. As invoked against Twin Rivers, the
MMUMA requires what federal law forbids, and the authority ostensibly
provided by the Maine law is “without effect.” Mut. Pharm. Co., Inc. v. Bartlett,
570 U.S. 472, 486-87 (2013) (quotation marks omitted); Robards, 677 A.2d at
543 (quotation marks omitted).
[¶30] Because the CSA preempts the MMUMA when the MMUMA is used
as the basis for requiring an employer to reimburse an employee for the cost of
medical marijuana, the order based on the MMUMA must yield. We therefore
vacate the decision of the Appellate Division.
The entry is:
Judgment vacated. Remanded to the Workers’
Compensation Appellate Division with
instructions to vacate the decision of the hearing
officer and remand for denial of the petition for
payment of medical expenses and services.
JABAR, J., with whom ALEXANDER, J., joins, dissenting.
[¶31] I respectfully dissent because I do not believe that the federal
Controlled Substances Act (CSA) preempts the Maine Medical Use of Marijuana
Act (MMUMA) in this case.
25
A. Preemption Analysis
[¶32] The United States Supreme Court has recognized that in “all
pre-emption cases, and particularly in those in which Congress has
legislated . . . in a field which the States have traditionally occupied, . . . we start
with the assumption that the historic police powers of the States were not to be
superseded by the Federal Act unless that was the clear and manifest purpose
of Congress.” Wyeth v. Levine, 555 U.S. 555, 565 (2009) (quotation marks
omitted). Central to this initial assumption is the theoretical underpinning that
our nation was founded upon: “federalism . . . allow[s] 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) (quotation marks omitted). Particularly relevant to this case, “[t]he
structure and operation of the CSA presume and rely upon a functioning
medical profession regulated under the States’ police powers.” Id. And in
Maine, we have been clear:
In cases where federal law is said to bar state action in fields of
traditional state regulation, such as workers’ compensation
legislation, there is an assumption that the historic police powers
of the States were not to be superseded by the Federal Act unless
that was the clear and manifest intent [of Congress].
26
Ciampi v. Hannaford Bros. Co., 681 A.2d 4, 8 (Me. 1996) (emphasis added)
(quotation marks omitted). “The case for federal pre-emption is particularly
weak where Congress has indicated its awareness of the operation of state law
in a field of federal interest, and has nonetheless decided to stand by both
concepts and to tolerate whatever tension there is between them.” Bonito Boats,
Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 166-67 (1989) (alteration
omitted) (quotation marks omitted).
[¶33] In order to determine whether the CSA preempts the MMUMA here,
we must determine whether it is the “clear” or “manifest” purpose of Congress
to preempt a state workers’ compensation board from ordering an employer to
reimburse an employee for valid medical expenses related to properly certified
medical marijuana. As the Court states, the CSA contains the following
provision regarding preemption:
No provision of this title shall be construed as indicating an
intent on the part of the Congress to occupy the field in which that
provision operates, including criminal penalties, 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 of this title and that State law so that the two
cannot consistently stand together.
27
21 U.S.C.S. § 903 (LEXIS through Pub. L. No. 115-181) (emphasis added); Court’s
Opinion ¶ 11. Our question now becomes whether a “positive conflict” exists
here.
[¶34] A positive conflict arises “when compliance with both state and
federal requirements is impossible.” Robards v. Cotton Mill Assocs., 677 A.2d 540,
544 (Me. 1996) (emphasis added). In the words of Erwin Chemerinsky, a
preeminent scholar of constitutional law, and his co-authors,
The phrase positive conflict . . . so that the two cannot consistently
stand together in section 903 has been interpreted as narrowly
restricting the preemptive reach of the CSA to cases of an actual
conflict with federal law such that compliance with both federal
and state regulations is a physical impossibility. Justice Scalia has
written that the plain language of section 903 states a
congressional intent that the CSA preempt only state laws that
require someone to engage in an action specifically forbidden by
the CSA. As a California appellate court succinctly put it, mere
speculation about a hypothetical conflict is not the stuff of which
preemption is made.
It is not physically impossible to comply with both the CSA and
state marijuana laws; nothing in the more liberal state laws
requires anyone to act contrary to the CSA. Only if a state law
required a citizen to possess, manufacture, or distribute marijuana
in violation of federal law would it be impossible for a citizen to
comply with both state and federal law. Similarly, if a state were to
make state officers the manufacturers or distributors of marijuana,
it might well be impossible for those officials to comply with both
state and federal law. No state marijuana law, however, has
attempted to require state or local officials to violate the CSA in this
manner.
28
Erwin Chemerinsky et al., Cooperative Federalism and Marijuana Regulation,
62 UCLA L. Rev. 74, 105-06 (2015) (emphases added) (footnotes omitted)
(quotation marks omitted).
[¶35] Turning to the supposedly conflicting laws, the MMUMA allows a
medical provider to “provide a written certification for the medical use of
marijuana” if a “qualifying patient is likely to receive therapeutic benefit” from
its use “to treat or alleviate the patient’s debilitating medical condition.”
22 M.R.S. § 2423-B (2017). Pursuant to the CSA, on the other hand, it is
“unlawful for any person knowingly or intentionally . . . to manufacture,
distribute, or dispense, or possess with intent to manufacture, distribute, or
dispense” marijuana. 21 U.S.C.S. § 841(a) (LEXIS through Pub. L. No. 115-181).
The CSA also makes it unlawful to knowingly or intentionally possess marijuana.
Id. § 844(a) (LEXIS through Pub. L. No. 115-181).
[¶36] Here, there is no positive conflict between the CSA and the
MMUMA because there is no state law that requires the employer—or any
person or entity—to possess, manufacture, or distribute marijuana. In other
words, compliance with both the federal law and the Workers’ Compensation
Board (WCB) order is possible: reimbursement does not require the employer
to physically manufacture, distribute, dispense, or possess marijuana, and, as a
29
result, no physical impossibility exists between the federal law and the WCB
order in this case. Adopting Chemerinsky’s analysis of section 903 of the CSA,
because there is no physical impossibility here, and because Congress has not
expressed a clear and manifest preemptive intent regarding state workers’
compensation boards and reimbursement for state-law compliant medical
marijuana use, see Ciampi, 681 A.2d at 8, no positive conflict exists.
[¶37] The employer and the Court point to the Colorado case of People v.
Crouse to support the argument that reimbursement creates a positive conflict.
388 P.3d 39 (Colo. 2017); Court’s Opinion ¶ 25. That case, however, serves to
highlight the exact reason that no positive conflict exists in Bourgoin’s case. In
Crouse, the Colorado Supreme Court held that there was a positive conflict
between the CSA and its constitution—its state law—that required police
officers to physically distribute seized medical marijuana to individuals who had
been charged and acquitted of the crime that led to the seizure. Id. at 40. The
conflict existed because of the actual physical impossibility that existed
between the Colorado state law and the CSA: the officers were—literally—
required to physically distribute the marijuana, and the CSA makes distribution
unlawful. Id. at 42; 21 U.S.C.S. § 841(a).
30
[¶38] This case is unlike People v. Crouse. There is a difference in both
nature and degree between following a WCB order to reimburse a worker for
medical treatment authorized by a physician and approved by the WCB and a
state law that requires police officers to physically distribute marijuana. The
key distinction is that the police officers’ actions in Crouse fit within an actual,
proscribed activity specifically defined by the CSA. See Crouse, 388 P.3d at 41.
Because the officers would be required to “deliver,” meaning engage in “the
actual, constructive, or attempted transfer of a controlled substance,” there was
a physical impossibility between the state law and the CSA. See id. at 42
(quotation marks omitted); see also 21 U.S.C.S. § 802(8), (11) (LEXIS through
Pub. L. No. 115-181). Here, unlike in Crouse, the employer’s reimbursement
does not fall into any category of defined or proscribed activity under the CSA.
Because the employer is not required to physically engage in activity that the
CSA proscribes, there is no positive conflict in this case.
B. Aiding and Abetting
[¶39] The Court’s primary legal theory—that because the employer
would be aiding and abetting Bourgoin’s possession, the CSA preempts the
MMUMA here—is unpersuasive because the government would not be able to
prove that the employer would be acting with the specific intent necessary to
31
establish the requisite mens rea element of the offense of aiding and abetting.
See 18 U.S.C.S. § 2 (LEXIS through Pub. L. No. 115-181). Further, the Court’s
analysis on aiding and abetting is speculative because it is not specific or certain
enough to show that there is a positive conflict in this case such that the Court
can conclude that preemption here is the “manifest” purpose of Congress. See
Wyeth, 555 U.S. at 565. At most, whether the government would be able to
prove the mens rea element is hypothetical, and hypotheticals do not give rise
to preemption. See, e.g., Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 131
(1978); see also Rice v. Norman Williams Co., 458 U.S. 654, 659 (1982) (“The
existence of a hypothetical or potential conflict is insufficient to warrant the
pre-emption of the state statute. A state regulatory scheme is not preempted
by the federal . . . laws simply because in a hypothetical situation a private
party’s compliance with the statute might cause him to violate the [federal]
laws.”).
[¶40] A person is punishable as a principal under federal law if that
person “aids, abets, counsels, commands, induces or procures [a crime’s]
commission” or “willfully causes an act to be done which if directly performed
by [that person] or another would be an offense against the United States.”
18 U.S.C.S. § 2. In 1938, Judge Learned Hand set forth a definition of the
32
necessary mens rea for all aiding and abetting offenses, stating that in order to
be guilty of aiding and abetting, it is necessary that the alleged aider or abettor
“participate in [the venture] as in something that he wishes to bring about, that
he seek by his action to make it succeed.” United States v. Peoni, 100 F.2d 401,
402 (2d Cir. 1938) (emphasis added). About a decade later, in Nye & Nissen
v. United States, the United States Supreme Court quoted Judge Hand’s
formulation, affirming this theory of mens rea for the offense of aiding and
abetting. See 336 U.S. 613, 618-19 (1949).
[¶41] Since Nye & Nissen, federal courts have continued to hold that the
accomplice must wish or desire to bring about the success of the principal in
committing the underlying substantive offense in order to be punishable as a
principal. See United States v. Zafiro, 945 F.2d 881, 887 (7th Cir. 1991) (“To be
proved guilty of aiding and abetting, . . . the defendant [must have] desired the
illegal activity to succeed.”); United States v. Poston, 902 F.2d 90, 93 (D.C.
Cir. 1990) (quoting Judge Hand’s formulation); United States v. Indelicato,
611 F.2d 376, 385 (1st Cir. 1979) (“To sustain a conviction on the aiding and
abetting . . . counts, the government had to prove beyond a reasonable doubt
that appellant willfully associated himself in some way with the criminal
venture and willfully participated in it as he would in something he wished to
33
bring about.”); United States v. Newman, 490 F.2d 139, 143 (3d Cir. 1974)
(“[T]he government must prove beyond a reasonable doubt that the defendant
participated in a substantive crime with the desire that the crime be
accomplished.”).
[¶42] In other words, the crime of aiding and abetting is a specific intent
crime. See United States v. Nacotee, 159 F.3d 1073, 1076 (7th Cir. 1998) (“To be
liable under an aiding and abetting theory . . . a defendant must have had the
specific intent to aid in the commission of the crime in doing whatever she did
to facilitate its commission.”); Bosco v. Serhant, 836 F.2d 271, 279 (7th Cir.
1987) (“Aiding and abetting in the criminal law requires not only knowledge of
the principal’s objective but a desire to help him attain it.”). In Zafiro, Judge
Posner explained further,
To be proved guilty of aiding and abetting, [it] must be
established[] that the defendant desired the illegal activity to
succeed. The purpose of this requirement is a little mysterious but
we think it is to identify, and confine punishment to, those forms of
assistance the prevention of which makes it more difficult to carry
on the illegal activity assisted.
945 F.2d at 887.
[¶43] In distancing its own analysis and view of liability for aiding and
abetting from that set forth here, the Court distinguishes between the criminal
liability element contained in, on the one hand, 18 U.S.C.S. § 2(a) and, on the
34
other, 18 U.S.C.S. § 2(b). Court’s Opinion ¶ 16 n.6. However, the above
discussion—of the general principles underlying aiding and abetting liability—
is not premised on that distinction. The Court’s discussion fails to adequately
account for the origin of the specific intent element that both section 2(a) and
2(b) contain. It is the common law—not the statutory law—that generates the
necessary specific intent element of section two liability for aiding and abetting,
and Congress’s decision not to set forth the requisite mental state in section
2(a) does not mean that the element is lacking, or that it is anything other than
what the common law has said that it is. See, e.g., Staples v. United States,
511 U.S. 600, 605-06 (1994) (“Indeed, we have noted that the common-law rule
requiring mens rea has been followed in regard to statutory crimes even where
the statutory definition did not in terms include it.”) (quotation marks omitted).
[¶44] In this context, the common law establishes the requisite mens rea
element for all of section two. See Nye & Nissen, 336 U.S. at 618-19 (discussing
the intent requirement for offenses of aiding and abetting). Moreover, Nye
& Nissen, decided in 1949, predated Congress’s 1951 amendment of section
2(b); prior to the 1951 amendment, the word “willful” was absent from section
two. See Act of Oct. 31, 1951, ch. 655, 65 Stat. 710, 717 (LEXIS). That Congress
did not add “willful” to section 2(a) in 1951 does not mean that Congress
35
intended to eliminate the specific intent or “willfulness” for section
2(a) liability; indeed, the opposite conception of the rationale underlying the
omission is stronger. See Baruch Weiss, What Were They Thinking?: The Mental
States of the Aider and Abettor and the Causer Under Federal Law, 70 Fordham
L. Rev. 1341, 1447 (2002) (“In fact, what little information that exists seems to
suggest . . . that the word [willfully] was added by Congress [in 1951] not to
differentiate between the two types of accomplices, but rather to confirm Judge
Learned Hand’s repeated efforts to equate them. The word was needed to bring
the causing subsection in line with the aiding and abetting subsection, which
had no need for the word because its verbs – aid, abet, counsel, command,
induce, and procure – sufficiently convey the concept of willful[ness].”)
(quotation marks omitted)).
[¶45] Here, the employer’s compliance with the WCB’s order to
reimburse Bourgoin’s state-law-compliant medical expenses is insufficient to
give rise to the specific intent element of aiding and abetting, regardless of with
which prong under section two the United States may or may not charge the
employer. The Court does not analyze how the government would be able to
meet its burden to prove beyond a reasonable doubt that the employer itself
actually desired or wished that Bourgoin be successful in committing the
36
underlying federal offense; I do not agree that mere knowledge is sufficient.
According to the Court, however, the employer “would be aiding and abetting
Bourgoin—in his purchase, possession, and use of marijuana—by acting with
knowledge that it was subsidizing Bourgoin’s purchase of marijuana.” Court’s
Opinion ¶ 20 (emphasis added). To support this proposition, the Court cites to,
among other sources of law, Rosemond v. United States, 134 S. Ct. 1240, 1248-50
(2014). That case, however, “did not deal . . . with defendants who incidentally
facilitate a criminal venture rather than actively participate in it.” Id. at 1249
n.8. The Rosemond Court discussed the type of activity that would not give rise
to the requisite specific intent: “A hypothetical case is the owner of a gun store
who sells a firearm to a criminal, knowing but not caring how the gun will be
used. We express no view about what sort of facts, if any, would suffice to show
that such a third party has the intent necessary to be convicted of aiding and
abetting.” Id.[¶46] In contrast, the employer in this case is even further removed from
Bourgoin than the gun store owner is from the “criminal” in the Rosemond
hypothetical; completely disinterested in Bourgoin’s use or possession of
marijuana—and indeed only reimbursing him for his medical expenses as
ordered by the WCB—the employer is not an active participant in the
37
substantive “offense” of Bourgoin’s possession. Contrary to the Court’s
conclusion, I do not agree that mere knowledge constitutes active participation
in the commission of a crime, the effective accomplishment of which the
accomplice himself or herself must wish or desire to bring about in order to
establish the requisite specific intent that the offense of aiding and abetting
demands.
[¶47] In fact, the existence of this litigation vitiates the specific intent
element that the government would have to prove if it even decided to
prosecute the employer. Regardless, whether the government would be able to
prove the requisite mens rea beyond a reasonable doubt is speculative, and
because speculative conflicts and hypotheticals do not give rise to preemption,
see, e.g., Exxon Corp., 437 U.S. at 131, reliance on the doctrine of aiding and
abetting to declare that it was Congress’s manifest purpose to preempt the WCB
from ordering reimbursement is far too tenuous. In sum, I do not agree that the
employer would commit an offense against the federal government by
reimbursing Bourgoin for his valid medical expenses pursuant to the WCB
order, especially in light of the strong presumption against preemption in this
state-controlled area of workers’ compensation—a domain that has
38
traditionally been regulated under the police powers of the states. See Ciampi,
681 A.2d at 8.
[¶48] The Court also discusses the employer’s offense of aiding and
abetting in a vacuum, devoid of any mention of the substantive offense, which
would be Bourgoin’s state-law-compliant use and possession of medical
marijuana. The Court points to no federal prosecution of possession of medical
marijuana, let alone a federal prosecution of aiding and abetting a singular
person’s simple possession of medical marijuana. 12 Because proof of the
existence of a substantive crime is also an element of an aiding and abetting
charge, see Indelicato, 611 F.2d at 385, the Court cannot reach the conclusion
that the employer has aided or abetted Bourgoin’s use or possession of
marijuana without similarly declaring that Bourgoin’s use or possession of
marijuana constitutes a federal offense. This omission allows the Court to avoid
a discussion that would necessarily be required to include the preemptive
12 Indeed, Congress has repeatedly enjoined the Department of Justice from expending any funds
to prevent states from administering their state-law-compliant medical marijuana programs. See
Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, § 538, 132 Stat. 348 (“None of the funds
made available under this Act to the Department of Justice may be used . . . to prevent [a state or
territory] from implementing their own laws that authorize the use, distribution, possession, or
cultivation of medical marijuana.”) (LEXIS); Consolidated Appropriations Act, 2017, Pub.
L. No. 115-31, § 537, 131 Stat. 135 (LEXIS) (similar); Consolidated Appropriations Act, 2016, Pub.
L. No. 114-113, § 542, 129 Stat. 2242 (LEXIS) (similar); Consolidated and Further Continuing
Appropriations Act, 2015, Pub. L. No. 113-235, § 538, 128 Stat. 2130 (LEXIS) (similar). To date, the
injunction remains in effect. See Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, § 538,
132 Stat. 348 (making appropriations through the fiscal year ending September 30, 2018).
39
effect of the CSA on Bourgoin’s state-law-compliant use and possession of
medical marijuana. The Court uses the doctrine of aiding and abetting as the
vehicle to declare that the MMUMA is preempted by the CSA in this case, but
because the government would not be able to prove that the employer has the
specific intent to aid or abet Bourgoin’s state-law-compliant use and possession
of medical marijuana, the Court’s reliance on the aiding and abetting doctrine
is misguided. The employer also acknowledged at oral argument that despite
the fact that the first state medical marijuana law was enacted more than two
decades ago in 1996,13 and the fact that twenty-nine states, two territories, and
the District of Columbia now have laws in effect that allow for the use of medical
marijuana, 14 it could not point to any federal prosecution against a medical
13 Cal. Health and Safety Code § 11362.5 (Deering 2018) (LEXIS).
14 Alaska, see Alaska Stat. §§ 17.37.010 to .080 (LEXIS through 2017); Arizona, see Ariz. Rev. Stat.
Ann. §§ 36-2801 to -2819 (LEXIS through First Reg. Sess. of 53rd Legis. (2017) and First Special Sess.
of 53rd Legis. (2018) and Emergency Legis. from 2018 2d Reg. Sess., effective as of May 16, 2018);
Arkansas, see Ark. Const. amend. XCVIII (LEXIS, through 2018 Fiscal Sess. and 2018 Second
Extraordinary Sess.); California, see Cal. Health and Safety Code §§ 11362.1 to .9 (Deering 2018)
(LEXIS); Colorado, see Colo. Const. art. XVIII, § 14 (LEXIS, through First Reg. Sess. and First
Extraordinary Sess. of 71st Gen. Assembly); Connecticut, see Conn. Gen. Stat. §§ 21a-408 to 429
(LEXIS through Pub. Acts 18-1 through 18-6, 18-8, 18-24); Delaware, see Del. Code Ann. tit. 16,
§§ 4901A to 4928A (LEXIS through 81 Del. Laws, ch. 253); District of Columbia, see D.C. Code
§§ 7-1671.01 to .13 (LEXIS through June 4, 2018); Florida, see Fla. Stat. § 381.986 (LEXIS through
2018 Reg. Sess.); Hawaii, see Haw. Rev. Stat. Ann. §§ 329-121 to -131 (LEXIS through Act 12 of 2018
Sess.); Illinois, see 410 Ill. Comp. Stat. Ann. 130/1 to /999 (LEXIS through P.A. 100-585 of the 100th
Legis. Sess.); Maine, see 22 M.R.S. §§ 2421 to 2430-B (2017); Maryland, see Md. Code Ann., Misc.
Health Care Programs §§ 13-3301 to -3316 (LEXIS through June 1, 2018); Massachusetts, see Mass.
Ann. Laws ch. 94D, §§ 1-3 (LEXIS through Act 98 of the 2018 Legis. Sess.); Michigan, see Mich. Comp.
Laws Serv. §§ 333.26421 to .26430 (LEXIS through 2018 Pub. Act 170); Minnesota, see Minn. Stat.
§§ 152.22 to .37 (LEXIS through ch. 118 (excluding portions of chs. 103, 113, and 115 of 2018 Reg.
40
provider for authorizing a patient to use marijuana for medicinal purposes,
much less to an employer or insurance carrier providing reimbursement for
authorized medical marijuana treatment. It is speculative to anticipate a
federal prosecution of an employer who reimburses an employee for medical
expenses pursuant to a WCB order mandating it to do so.
[¶49] Because I would hold that there is no positive conflict between the
CSA and the MMUMA in this case, I address the remainder of the employer’s
arguments on appeal.
Sess. of Minn. 90th Legis.)); Montana, see Mont. Code Ann. §§ 50-46-301 to -345 (LEXIS through 2017
Reg. Sess. of 65th Legis. and Nov. 2017 Special Sess.); Nevada, see Nev. Rev. Stat. Ann. §§ 453A.010 to
.810 (LEXIS through chs. 1-505, 507-560, 562-565, 567, 569, 572-587, 589-608 of 79th Reg. Sess.
(2017)); New Hampshire, see N.H. Rev. Stat. Ann. §§ 126-X:1 to :11 (LEXIS through Act 48 of 2018
Reg. Sess.); New Jersey, see N.J. Stat. Ann. §§ 24:6I-1 to -16 (LEXIS through 218th First Annual Sess.,
L. 2018, c. 15 and J.R. 5); New Mexico, see N.M. Stat. Ann. §§ 26-2B-1 to -7 (LEXIS through 2018 Reg.
Sess. enactments of 53rd Legis.); New York, see N.Y. Pub. Health Law §§ 3360 to 3369-e (LEXIS
through 2018 chs. 1-47, 50-58); North Dakota, see N.D. Cent. Code §§ 19-24.1-01 to -40 (LEXIS
through end of 2017 Reg. Legis. Sess.); Ohio, see Ohio Rev. Code Ann. §§ 3796.01 to .30 (LEXIS through
Legis. passed by 132nd Gen. Assembly and filed with Sec’y of State through file 66 (HB 354)); Oregon,
see Or. Rev. Stat. §§ 475.300 to .375 (LEXIS through emergency legis. through chs. 1-50, 52-59, 62-71,
73-92 of 2018 Legis. Sess.); Pennsylvania, see 35 Pa. Cons. Stat. §§ 10231.101 to .2110 (LEXIS through
2018 Reg. Sess. Acts 1-21); Rhode Island, see 21 R.I. Gen. Laws §§ 21-28.6-1 to -17 (LEXIS through ch.
28 of Jan. 2018 Sess.); Vermont, see Vt. Stat. Ann. tit. 18, §§ 4471 to 4474m (LEXIS through ch. 110
and Municipal Act 15 of the 2017 Adjourned Sess. (2018)); Washington, see Wash. Rev. Code Ann.
§§ 69.51A.005 to .903 (LEXIS through 2018 ch. 6); West Virginia, see W. Va. Code Ann. §§ 16A-1-1 to
-16-1 (LEXIS through 2018 Reg. Sess. Legis.); Guam, see 10 Guam Code Ann. §§ 122501 to 122529
(LEXIS through P.L. 34-71, 12/15/2017); Puerto Rico, see 9000 PR Regla 8686 (LEXIS through rules
received before January 23, 2018).
41
C. Private Health Insurers
[¶50] The employer argues that the plain language contained in section
2426(2)(A) of the MMUMA demonstrates a legislative intent that no third party
should be required to reimburse a person for their use of medical marijuana.
See 22 M.R.S. § 2426(2)(A) (2017). We review issues of statutory
interpretation de novo. See Estate of Sullwold v. Salvation Army, 2015 ME 4, ¶ 7,
108 A.3d 1265.
[¶51] “The cardinal rule of statutory construction is to ascertain and
effectuate the intent of the legislature.” State v. Hudson, 470 A.2d 786, 788
(Me. 1984). “[A] well-settled rule of statutory interpretation states that express
mention of one concept implies the exclusion of others not listed.” Musk v.
Nelson, 647 A.2d 1198, 1201 (Me. 1994); see also Lee v. Massie, 447 A.2d 65, 68
(Me. 1982) (“[T]he maxim [of] expressio unius est exclusio alterius . . . is regarded
as well recognized in Maine . . . . ” (quotation marks omitted)). We only “look
beyond the plain meaning and consider other indicia of legislative intent” if “the
statutory language is ambiguous.” Damon v. S.D. Warren Co., 2010 ME 24, ¶ 10,
990 A.2d 1028.
[¶52] The MMUMA states that it “may not be construed to require . . . [a]
government medical assistance program or private health insurer to reimburse
42
a person for costs associated with the medical use of marijuana.” 22 M.R.S.
§ 2426(2)(A). The MMUMA does not define “private health insurer.” See
22 M.R.S. § 2422 (2017). However, the Workers’ Compensation Act (WCA)
defines “employer,” “[i]f the employer is insured,” to include “the insurer,
self-insurer or group self-insurer.” 39-A M.R.S. § 102(12) (2017). Under the
WCA, “insurance company” is separately defined as “any casualty insurance
company or association authorized to do business in this State that may issue
policies” and does not include employers. Id. § 102(14). See, e.g., Deabay v. St.
Regis Paper Co., 442 A.2d 963, 964 (Me. 1982) (distinguishing between private
health insurers and self-insured employers under the WCA).
[¶53] We must first look to the plain meaning of “private health insurer”
under the MMUMA and construe that language to avoid an absurd, inconsistent,
or illogical result. See Hanson v. S.D. Warren Co., 2010 ME 51, ¶ 12, 997 A.2d
730. Read in conjunction with the entire sentence within which the phrase is
contained, there exist only two categories of third parties that should be exempt
from paying for the use of medical marijuana: government medical assistance
programs or private health insurers. The use of the disjunctive word “or”
between the two types of third parties, and the absence of any other potential
third-party payors, indicates the intent to set forth an exhaustive list of third
43
parties exempt from reimbursement, consistent with the statutory
interpretation canon of expressio unius. See Musk, 647 A.2d at 1201; see also
Lee, 447 A.2d at 68. Employers, including those that are self-insured, are not
the functional equivalents to otherwise private health insurers. I would hold
that for the purposes of WCA claims, “private health insurers” is unambiguous
as used in the MMUMA and does not include self-insured employers for
purposes of compensation under the WCA.
D. Reasonable and Proper Treatment
[¶54] The employer argues that medical marijuana is not a reasonable
and proper form of treatment under the WCA because it is illegal under the CSA;
it has not been shown to have an accepted level of safety; there is no control
over the quality of the substance; and there is no control over its billing. We
review issues of statutory interpretation de novo. See Estate of Sullwold,
2015 ME 4, ¶ 7, 108 A.3d 1265.
[¶55] “When construing provisions of the Workers’ Compensation Act,
our purpose is to give effect to the Legislature’s intent.” Graves v.
Brockway-Smith Co., 2012 ME 128, ¶ 9, 55 A.3d 456 (quotation marks omitted).
Pursuant to the WCA, “[a]n employee sustaining a personal injury arising out of
and in the course of employment . . . is entitled to reasonable and proper
44
medical, surgical and hospital services, nursing, medicines, and mechanical,
surgical aids, as needed, paid for by the employer.” 39-A M.R.S. § 206 (2017).
[¶56] The WCA does not define what “reasonable and proper” means.
See generally 39-A M.R.S. § 102 (2017). However, we have held that the
“reasonable and proper” language contained within the WCA is “unambiguous
on its face” and that “the Legislature sought to provide payment by the
employer for all reasonable and proper medical . . . services . . . required by an
employee sustaining a personal injury arising out of and in the course of his
employment.”15 Cote v. Georgia-Pacific Corp., 596 A.2d 1004, 1005 (Me. 1991)
(quotation marks omitted). When determining whether a particular medical
expense is “reasonable and proper” under the WCA, we have stated that “[e]ach
case must be decided according to its own particular facts and according to the
statute’s ultimate purpose to provide reasonable relief from the effects of a
work-related injury.” Brawn v. Gloria’s Country Inn, 1997 ME 191, ¶ 11,
698 A.2d 1067 (emphasis added). See, e.g., id. ¶¶ 10, 15 (holding that a
part-time assistant and van to accommodate a wheelchair were reasonable and
15 Before 1992, the WCA’s “reasonable and proper” language was contained in 39 M.R.S.A. § 52
(1964), but after the Act was overhauled in 1992, the same language became part of section 206;
although the language moved, it has retained the same meaning. See P.L. 1991, ch. 885, § A-8
(effective Oct. 7, 1992); see also L.D. 2464, Statement of Fact, Part A, at 211 (115th Legis. 1992)
(“Section 206 reorganizes and substantially enacts the provisions of the former Title 39, section
52 . . . .”).
45
proper when medically necessary for that particular employee); Cote, 596 A.2d
at 1005-06 (holding that housekeeping was not reasonable and proper when it
had no accompanying medical component); Archer v. MDS Bldg., Inc., 2004 ME
17, ¶¶ 2, 6, 841 A.2d 801 (holding that elective amputation of a toe to replace a
thumb lost in a work injury was reasonable and proper because the amputation
was a “direct consequence” of reasonable and proper treatment).
[¶57] Turning to the particular facts of Bourgoin’s own case, Bourgoin
suffers from severe chronic pain syndrome, which includes symptoms of pain
and muscle spasms in his back, legs, arms, and chest. Bourgoin has attempted
many treatments since he was placed on total disability in 1989, including
nerve blocks, aquatherapy, and pain management through opioid medication.
Eventually, the continued use of opioid medication resulted in severe negative
side effects, including narcotic dependence, with dependency dating as far back
as the 1990s, and suicidal ideation. The hearing officer found that strong
narcotic medications “have already been tried and they have failed
Mr. Bourgoin miserably.” As a result, and after consultation with his
psychiatrist, his primary doctor recommended ceasing narcotic medications,
and in January of 2012, Bourgoin obtained a medical marijuana certification
from a physician. Bourgoin has used medical marijuana since his certification
46
to successfully treat his chronic pain, and the hearing officer found that
Bourgoin “has experienced significant benefit from medical marijuana, and that
opioids have already been shown to be a failure.”
[¶58] With no reference to the “particular facts” of Bourgoin’s case, the
employer here argues that medical marijuana is per se unreasonable and
improper for Bourgoin because possession of marijuana is unlawful under the
CSA. I would decline to adopt this argument and would conclude that medical
marijuana was reasonable and proper here based on the particular facts of
Bourgoin’s own case, as established by the record before us. Specifically, the
severity and chronic nature of his pain, his many and varied attempts to try
different treatments, none of which were effective, and the ultimate
effectiveness of medical marijuana for his particular situation, show that the
medical use of marijuana was reasonable and proper in this case.
E. Rejection of IME’s Findings
[¶59] The employer argues that there was not clear and convincing
evidence to contradict the independent medical examiner’s (IME) findings, and
that the hearing officer’s analysis was flawed because it failed to consider
47
whether medical marijuana can ever be reasonable “given its illegality under
the CSA.”
[¶60] A hearing officer must adopt the medical findings of the IME
“unless there is clear and convincing evidence to the contrary in the record that
does not support the medical findings.” 39-A M.R.S. § 312(7) (2017). Although
a hearing officer’s decision “on all questions of fact is final,” a hearing officer’s
conclusion that an employee satisfied his or her burden to prove by clear and
convincing evidence that the independent medical examiner’s findings should
be rejected is a conclusion of law that is subject to appellate review. 39-A M.R.S.
§ 318 (2017).16 In such a case, “we determine whether the hearing officer could
have been reasonably persuaded by the contrary medical evidence that it was
highly probable that the record did not support the IME’s medical findings.”
Sprague v. Lucas Tree Experts, 2008 ME 162, ¶ 24, 957 A.2d 969 (quotation
marks omitted).
[¶61] In this case, the hearing officer found it to be highly probable that
the record did not support the IME’s findings. Specifically, the hearing officer
was persuaded by the testimony of Dr. Sulak regarding the benefits of
16 Certain portions of the WCA, including 39-A M.R.S. § 318 (2017), were amended after the decree
in this case was entered, see, e.g., P.L. 2015, ch. 297, § 13 (effective Oct. 15, 2015), though not in any
way relevant to this discussion.
48
marijuana for the treatment of long-term, chronic pain, and Bourgoin’s own
testimony regarding the effects of marijuana on his level of pain. The hearing
officer found this evidence to be more persuasive than the IME’s findings. The
IME concluded that, because medical marijuana had no currently accepted
medical use under federal law, it was not a reasonable and proper treatment
for any patient, regardless of its efficacy in a given circumstance.
[¶62] Because the record contains (1) numerous examples of the ways
in which medical marijuana has reduced Bourgoin’s chronic pain since
beginning the regimen of medical marijuana use; and (2) evidence of traditional
opioid medication’s failure to reduce his chronic pain, I would hold that the
hearing officer could have been reasonably persuaded by the contrary medical
evidence, and, as a result, that he did not err when he concluded that it was
highly probable that the record did not support the IME’s medical findings.
[¶63] Accordingly, I would affirm the decision of the Appellate Division.
ALEXANDER, J., dissenting.
[¶64] I am pleased to join Justice Jabar’s thoroughly researched and
carefully written dissenting opinion. I write separately because in the extensive
49
discussion of the law of preemption, we must not lose sight of the injured
worker whom this opinion is really about.
[¶65] Gaetan Bourgoin has endured chronic, disabling pain from a
workplace injury he sustained three decades ago. The result of the Court’s
opinion today is to deprive Bourgoin of reimbursement for medication that has
finally given him relief from his chronic pain, and to perhaps force him to return
to the use of opioids and other drugs that failed to relieve his pain and may have
placed Bourgoin’s life at risk.
[¶66] The essential elements of this appeal are that other states allow
appropriate medical personnel to prescribe or certify marijuana to treat health
conditions; these states allow employers and private insurers to reimburse for
marijuana prescriptions or certificates; and the certificates and
reimbursements are technically violations of federal law, but the federal
government has not taken criminal or civil action to prevent these certifications
or reimbursements or at least no such federal prosecution is indicated in the
record.
[¶67] Based on the status of the law in 2016, the Appellate Division
approved the certificates and the reimbursements. The Court’s opinion rejects
the Appellate Division’s findings and, based on its speculation that federal
50
enforcement practice might change, the Court holds as a matter of law that the
Appellate Division erred in approving the certificates and reimbursements for
Mr. Bourgoin. Court’s Opinion ¶¶ 26-30. In this, the Court is reaching too far,
speculating about the future rather than looking at the present, as was properly
addressed by the Appellate Division.
[¶68] From that result, I respectfully dissent.
Anne-Marie L. Storey, Esq. (orally), and John K. Hamer, Esq., Rudman Winchell,
Bangor, for appellants Twin Rivers Paper Company, LLC, and Sedgwick Claims
Management Services
Norman G. Trask, Esq. (orally), Currier & Trask, P.A., Presque Isle, for appellee
Gaetan H. Bourgoin
Thomas E. Getchell, Esq., Troubh Heisler, Portland, for amicus curiae University
of Maine System
Workers Compensation Board Appellate Division case number 15-0022
FOR CLERK REFERENCE ONLY