Gaetan H. Bourgoin v. Twin Rivers Paper Company, LLC

MAINE SUPREME JUDICIAL COURT Reporter of Decisions

Decision: 2018 ME 77

Docket: 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

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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).

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[¶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

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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).

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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

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“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

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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.

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§§ 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

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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).

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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

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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.

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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

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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

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[¶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).

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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).

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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

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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