Respondents Brief — Susan K. Musta, Petitioner v. Mendota Heights Dental Center, et al.

Supreme Court briefJan 14, 2022

Ask Donna

What actually matters in this document.

Text

No. 21-676

IN THE

Supreme Court of the United States

————

SUSAN K. MUSTA,

Petitioner,

MENDOTA HEIGHTS DENTAL CENTER,

and HARTFORD INSURANCE GROUP,

Respondents.

————

On Petition for a Writ of Certiorari to the

Minnesota Supreme Court

————

BRIEF OF RESPONDENTS

IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

————

JONATHAN M. FREIMAN

Counsel of Record

WIGGIN AND DANA LLP

One Century Tower

265 Church Street

New Haven, CT 06510

(203) 498-4400

jfreiman@wiggin.com

Counsel for Respondents

January 14, 2022

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

QUESTION PRESENTED

Does the federal Controlled Substances Act—

which criminalizes the manufacture, distribution, or

possession of marijuana and does not include an

exception for medical marijuana—preempt an order

under the Minnesota Workers’ Compensation Act

requiring an employer to reimburse an injured

employee for the cost of obtaining medical marijuana?

CORPORATE DISCLOSURE STATEMENT

Though misidentified in the caption and in the

proceedings below as “Hartford Insurance Group,” the

actual insurer involved in this action is Hartford

Casualty Insurance Company. (A relevant legal entity

called “Hartford Insurance Group” does not, to the best

of our knowledge, exist.) Hartford Casualty Insurance

Company is wholly owned by Hartford Accident and

Indemnity Company, a Connecticut corporation,

which is wholly owned by Hartford Fire Insurance

Company. Hartford Fire Insurance Company, a

Connecticut corporation, is a wholly owned subsidiary

of The Hartford Financial Services Group, Inc., a

Delaware corporation. The Hartford Financial

Services Group, Inc. is a publicly traded corporation

that has no parent corporation. To the best of our

knowledge, no publicly held corporation currently

owns 10% or more of its common stock.

Mendota Heights Dental Center, P.A. was a

Minnesota corporation that was formally dissolved in

2020. To the best of our knowledge, it had no parent

corporation and no publicly held corporation owned

10% or more of its stock.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..................................

CORPORATE DISCLOSURE STATEMENT .....

TABLE OF AUTHORITIES ................................

INTRODUCTION ................................................

STATEMENT OF THE CASE ............................

A. Statutory Background ................................

B. Proceedings Below ......................................

REASONS FOR DENYING THE PETITION ....

I. The petition presents case-specific

questions. ..................................................

II. An opinion issued in this case could

swiftly become moot. .................................

III. The modest state supreme court split

signals that state courts would benefit

from further time to develop these issues.

...................................................................

IV. The decision below correctly applied wellsettled law on preemption. .......................

CONCLUSION ....................................................

TABLE OF AUTHORITIES

CASES

Page(s)

Arizona v. United States,

567 U.S. 387 (2012) ............................... 3, 19, 20

Baker v. State,

488 P.3d 579 (Nev. 2021) ..........................

Bourgoin v. Twin Rivers Paper Co., LLC,

187 A.3d 10 (Me. 2018) ................. 16, 21, 25, 29

Cotto v. Ardagh Glass Packing, Inc.,

2018 WL 3814278

(D.N.J. Aug. 10, 2018) ..............................

Dixon v. United States,

548 U.S. 1 (2006) .......................................

Emerald Steel Fabricators, Inc.

v. Bureau of Lab. & Indus.,

230 P.3d 518 (Or. 2010) ............................

Garcia v. Tractor Supply Co.,

154 F. Supp. 3d 1225 (D.N.M. 2016) ........

Gonzales v. Raich,

545 U.S. 1 (2005) ............................. 4, 14, 19, 30

Hager v. M&K Constr.,

246 N.J. 1 (2021) .......................................

Hillsborough Cty., Fla. v.

Automated Med. Lab’ys, Inc.,

471 U.S. 707 (1985) ...................................

Knight v. United Land Ass’n,

142 U.S. 161 (1891) ...................................

Lambdin v. Marriott Resorts Hosp. Corp.,

2017 WL 4079718

(D. Haw. Sept. 14, 2017) ...........................

TABLE OF AUTHORITIES—Continued

Page(s)

Murphy v. Nat’l Collegiate Athletic Ass’n,

138 S. Ct. 1461 (2018) ...............................

Mut. Pharm. Co. v. Bartlett,

570 U.S. 472 (2013) ......................... 2, 20, 22, 30

Noble Sys. Corp. v. Alorica Cent., LLC,

543 F.3d 978 (8th Cir. 2008) .....................

Oneok, Inc. v. Learjet, Inc.,

575 U.S. 373 (2015) ...................................

Oregon Prescription Drug Monitoring

Program v. U.S. Drug Enf’t Admin.,

860 F.3d 1228 (9th Cir. 2017) ...................

Appeal of Panaggio,

260 A.3d 825 (N.H. 2021) .........................

People v. Crouse,

388 P.3d 39 (Co. 2017) .............................. 25, 26

Roe v. TeleTech Customer Care

Mgmt. (Colorado) LLC,

257 P.3d 586 (Wash. 2011) .......................

Rosemond v. United States,

572 U.S. 65 (2014) ................................. 5, 22, 23

Ross v. RagingWire

Telecommunications, Inc.,

174 P.3d 200 (Cal. 2008) ...........................

State v. Senna,

79 A.3d 45 (Vt. 2013) ................................

State v. Thiel,

846 N.W.2d 605

(Minn. Ct. App. 2014) ...............................

TABLE OF AUTHORITIES—Continued

Page(s)

Swindol v. Aurora Flight Scis. Corp.,

805 F.3d 516 (5th Cir. 2015) .....................

United States v. Cook,

745 F.2d 1311 (10th Cir. 1984) .................

United States v. Kleinman,

880 F.3d 1020 (9th Cir. 2017) ...................

United States v. Ledezma,

26 F.3d 636 (6th Cir. 1994) .......................

United States v. McIntosh,

833 F.3d 1163 (9th Cir. 2016) ................... 12, 14

United States v. Oakland Cannabis

Buyers’ Co-op.,

532 U.S. 483 (2001) ............................... 4, 30, 31

United States v. Pisarski,

965 F.3d 738 (9th Cir. 2020) ..................... 12-13

United States v. Schostag,

895 F.3d 1025 (8th Cir. 2018) ................... 6, 22

United States v. Smith,

573 F.3d 639 (8th Cir. 2009) .....................

United States v. Superior

Growers Supply, Inc.,

982 F.2d 173 (6th Cir. 1992) .....................

United States v. Trevino,

7 F.4th 414 (6th Cir. 2021) .......................

Virginia Uranium, Inc. v. Warren,

139 S. Ct. 1894 (2019) ...............................

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Washburn v. Columbia Forest Prod., Inc.,

134 P.3d 161 (Or. 2006) ............................

Willis v. Winters,

253 P.3d 1058 (Or. 2011) ..........................

Wright v. Pioneer Valley,

2019 WL 3323160 (Mass. Dept. Ind. Acc.

Feb. 14, 2019), aff’d on other grounds,

Wright’s Case, 156 N.E.3d 161 (2020) .....passim

CONSTITUTION

U.S. Const. art. VI, cl. 2 ............................... 19, 26

STATUTES

18 U.S.C. § 2(a) ............................................passim

18 U.S.C. § 3282 ...........................................

21 U.S.C. § 811(a) .........................................

21 U.S.C. § 812(b)(1)(B)................................

21 U.S.C. § 812(c)(Sched.I)(c)(10) ................

21 U.S.C. § 823(f) ..........................................

21 U.S.C. § 844(a) ......................................... 4, 27

21 U.S.C. § 903 .............................................

Consolidated and Further Continuing

Appropriations Act, 2015, Pub. L. No.

113–235, § 538, 128 Stat. 2130 (2014) .....

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Consolidated Appropriations Act, 2021,

Pub. L. No. 116-260, § 531, 134 Stat. 1182

(2020) .........................................................

Controlled Substances Act, 21 U.S.C. § 801

et seq. ........................................................passim

Further Extending Government Funding

Act, 2021, Pub. L. No. 117-70, 135 Stat.

1499 (2021) ................................................

Maine Medical Use of Marijuana Act, Me.

Stat. tit. 22 § 2421.....................................

Minn. Stat. §§ 152.21-.37 ............................passim

Minn. Stat. § 152.22, subd. 14 .....................

Minn. Stat. § 152.23(b) .................................

Minn. Stat. § 152.25, subd. 1(a) ...................

Minn. Stat. § 152.27, subd. 3(b) ...................

Minn. Stat. § 152.27, subd. 6(a) ...................

Minn. Stat. § 152.32, subd. 3(a) ...................

Minn. Stat. § 152.32, subd. 3(c) ...................

Minn. Stat. § 176.021, subd. 1 .....................

Minn. Stat. § 176.135, subd. 1 ............... 1, 7, 8, 22

RULES

Fed. R. Evid. 201 ..........................................

OTHER AUTHORITIES

45 Minn. Reg. 1299 (June 14, 2021) ............

TABLE OF AUTHORITIES—Continued

Page(s)

Andrew Wasserman, Cannabis and federal

legalization: What to expect in 2021, 2021

WL 1658526 (2021) ...................................

Business Record Details for “Mendota

Heights Dental Center,” Minnesota Sec’y

of State, https://mblsportal.sos.state.mn.

us/Business/SearchDetails?filingGuid=db

faf68a-cd87-e911-9175-00155d01b32c (last

visited Jan. 11, 2022) ................................

Business Record Details for “Mendota

Heights Dental Center, P.A.,” Minnesota

Sec’y of State, https://mblsportal.sos.sta

te.mn.us/Business/SearchDetails?filingG

uid=d1b69eab-abd4-e011-a886-001ec94ff

e7f (last visited Jan. 11, 2022).................. 9-10

Danielle Grant-Keane, The Unattainable

High of the Marijuana Industry, 90 Wis.

L. 14 (2017) ...............................................

Denial of Petition to Initiate Proceedings to

Reschedule Marijuana, 81 FR 53767-01

(Aug. 12, 2016) ..........................................

Map of Marijuana Legality by State, DISA

Global Solutions, https://disa.com/mapof-marijuana-legality-by-state (last visited

Jan. 13, 2022) ............................................

TABLE OF AUTHORITIES—Continued

Page(s)

Office of the Attorney General, Memorandum for All United States Attorneys

(Jan. 4, 2018) .............................................

State Medical Cannabis Laws, National

Conference of State Legislatures, https://

www.ncsl.org/research/health/state-medi

cal-marijuana-laws.aspx (last visited

Jan. 13, 2022) ............................................

INTRODUCTION

Petitioner Susan K. Musta purchased marijuana in

the state of Minnesota. At all relevant times, her

possession of marijuana was a federal crime pursuant

to the Controlled Substances Act (“CSA”), 21 U.S.C.

§ 801 et seq. Her possession of marijuana did not,

however, also separately subject her to criminal liability under Minnesota state law. That is because

Minnesota law authorizes individuals with certain

qualifying conditions—in Musta’s case, “chronic pain”

stemming from a work-related injury—to use marijuana for medical purposes. See Minn. Stat. §§ 152.21.37. Following her initial marijuana purchase, Musta

sought reimbursement from Respondents Mendota

Heights Medical Center and Hartford Insurance

Group pursuant to the Minnesota Workers’ Compensation Act, which requires employers to “furnish”

injured employees with medical treatments. Minn.

Stat. § 176.135, subd. 1.1 The Minnesota Supreme

Court held that the CSA preempted Respondents’

reimbursement obligation, reasoning that state law

could not compel Respondents to participate in

conduct that federal law forbids.

The Minnesota Supreme Court’s decision involved a

straightforward application of this Court’s wellestablished federal preemption rules. Under longstanding precedent, a federal statute preempts a state

statute where the two “conflict” and “compliance with

both federal and state regulations is a physical

As noted above, the actual insurer is the Hartford Casualty

Insurance Company, an indirect subsidiary of the Hartford

Financial Services Group. For simplicity, we use the inaccurate

term “Hartford Insurance Group” for consistency with the Petition and the decision below.

impossibility.” Hillsborough Cty., Fla. v. Automated

Med. Lab’ys, Inc., 471 U.S. 707, 713 (1985) (internal

quotation marks omitted); see Mut. Pharm. Co. v.

Bartlett, 570 U.S. 472, 479–80 (2013); Arizona v.

United States, 567 U.S. 387, 399 (2012).

The

Minnesota Supreme Court faithfully applied this

precedent, recognizing that an employer could not

possibly comply with both a state-law obligation to aid

an employee in possessing medical marijuana and a

federal-law obligation not to aid anyone in possessing

medical marijuana.

In seeking review of the Minnesota Supreme

Court’s decision, Musta acknowledges that the tension between new state laws permitting medical

marijuana use and the federal law that prohibits such

use has created a range of legal issues that reach

far beyond the workers’ compensation context. For

several reasons, the U.S. Supreme Court should not

use this particular case to wade into that quagmire.

First, this case is a bad vehicle for review because

Musta’s employer no longer exists. As discussed

below, the corporation that employed Musta was

formally dissolved in 2020, prior to the issuance of the

Minnesota Supreme Court’s decision. The legal effect

of Musta’s employer’s current nonexistence may

complicate or impede the Court’s analysis of the

underlying merits issues. See infra Section I.

The Court should also deny the Petition for review

because any further opinion issued in this case could

swiftly become moot. The Minnesota Supreme Court’s

decision, as well as other state supreme court decisions on which the Petition relies, all rest substantially on a state of legal affairs that is in a period

of rapid change: States are crafting new marijuana

laws every year. The federal government’s response to

these new laws has been unpredictable to say the

least, consisting of Department of Justice (“DOJ”)

internal rules that have been rescinded with changing presidential administrations, as well as appropriations bill riders that limit funding for marijuana

prosecutions for just one year at a time while offering

no assurances for any subsequent year. And public

pressure continues to grow in support of federal

decriminalization of marijuana use—a change that

could occur imminently by action of the current

attorney general. At any moment, key circumstances

could shift and nullify the reasoning behind any U.S.

Supreme Court opinion issued in this matter. See

infra Section II.

Moreover, of the numerous preemption questions

triggered by state medical marijuana laws, the

workers’ compensation question is among the newest

sources of debate in state supreme courts. Although

forty-seven states now have some type of medical

marijuana laws, only four state supreme courts have

yet had an opportunity to consider whether federal

law preempts their state marijuana laws that require

employers to reimburse employees for medical

marijuana purchases. A narrow split has emerged

only within the last year, with three of the four

relevant decisions issued in 2021 alone. Supreme

Court review at this stage would be premature, as the

Court would benefit from allowing the state courts

more time to develop and address the issues. See

infra Section III.

Further review is also unnecessary because the

Minnesota Supreme Court’s decision is plainly correct

and rests squarely on federal preemption principles

that require no further clarification. In seeking review

of that decision, Musta mischaracterizes federal law

and confuses the illegality of conduct with the

likelihood of getting away with illegal conduct. See

infra Section IV.

This Court should deny the Petition.

STATEMENT OF THE CASE

A. Statutory Background

In 1970, Congress enacted the CSA with the “main

objectives” of “conquer[ing] drug abuse and . . .

control[ling] the legitimate and illegitimate traffic in

controlled substances,” including marijuana. Gonzales

v. Raich, 545 U.S. 1, 12 (2005). The CSA categorizes

controlled substances into five schedules “based on

their accepted medical uses, the potential for abuse,

and their psychological and physical effects on the

body.” Id. at 13. The CSA currently lists marijuana

in “Schedule I,” the category for controlled substances deemed to pose the highest risk. 21 U.S.C.

§ 812(c)(Sched.I)(c)(10)). By definition, a Schedule

I controlled substance “has no currently accepted

medical use in treatment in the United States.” 21

U.S.C. § 812(b)(1)(B). This scheduling renders the

manufacture, distribution, or possession of marijuana a federal crime. 21 U.S.C. § 844(a); see Raich, 545

U.S. at 14.

The CSA does not provide an exception for medical

marijuana use. Nor does it provide even a more

limited exception for medical marijuana use in states

that have decriminalized such use under state law.

See United States v. Oakland Cannabis Buyers’ Co-op.,

532 U.S. 483, 491 (2001) (“[A] medical necessity

exception for marijuana is at odds with the terms of

the Controlled Substances Act.”). In the more than

half a century since the enactment of the CSA,

marijuana has never been removed from Schedule I

and the use of marijuana has, without relevant

limitation,2 always remained a federal crime.

The federal aiding-and-abetting statute, 18 U.S.C.

§ 2(a), provides that “[w]hoever commits an offense

against the United States or aids, abets, counsels,

commands, induces or procures its commission, is

punishable as a principal.” This statute “does not

create a separate crime, but rather abolishes the

common law distinction between the principals and

accessories.”

United States v. Superior Growers

Supply, Inc., 982 F.2d 173, 177-78 (6th Cir. 1992);

accord United States v. Cook, 745 F.2d 1311, 1315

(10th Cir. 1984). Section 2(a) “reflects a centuries-old

view of culpability: that a person may be responsible

for a crime he has not personally carried out if he

helps another to complete its commission.” Rosemond

v. United States, 572 U.S. 65, 70 (2014). This Court

has clarified that “a defendant can be convicted as

an aider and abettor without proof that he participated in each and every element of the offense,” and

that the defendant need only “(1) take[] an affirmative

act in furtherance of that offense, (2) with the intent

of facilitating the offense’s commission.” Id. at 71, 73

(internal quotation marks and alteration omitted).

Under § 2(a), an individual who aids and abets a CSAproscribed crime—such as possession of marijuana—

is liable as a principal and can be convicted of that

crime. See, e.g., United States v. Smith, 573 F.3d 639,

646 (8th Cir. 2009).

The CSA provides only one exception, which is not at issue

in this case: It permits marijuana use as part of a research study

preapproved by the Food and Drug Administration. See 21 U.S.C.

§ 823(f).

In 2014, the state of Minnesota amended its THC

Therapeutic Research Act (“THC Act”) to create a

program under which a person “diagnosed with a

qualifying medical condition” may obtain and use

medical marijuana without criminal liability under

Minnesota law.

See Minn. Stat. §§ 152.21-.37.

Originally, the THC Act as amended listed categories of qualifying medical conditions that included

certain types of “cancer” and “terminal illness.”

Minn. Stat. § 152.22, subd. 14. But the THC Act also

permitted Minnesota’s Commissioner of Health to

approve new qualifying conditions. Id. The Commissioner of Health has since approved a range of

additional qualifying conditions, including “[i]ntractable pain,” “[c]hronic pain,” “PTSD,” and “Autism Spectrum Disorder.” 45 Minn. Reg. 1299 (June 14, 2021).

Enrollment in Minnesota’s medical marijuana

program is entirely voluntary and requires a formal

application, including a doctor’s certification and

payment of application fees. Minn. Stat. § 152.27,

subd. 6(a). An enrollee must re-submit a doctor’s

certification annually. Minn. Stat. § 152.27, subd.

3(b). An enrollee must also only obtain medical marijuana from one of two registered manufacturers in

the state. Minn. Stat. § 152.25, subd. 1(a). The THC

Act permits and decriminalizes marijuana use under

state law where such procedural requirements are

satisfied. As noted above, however, the federal CSA

still prohibits and criminalizes marijuana use under

the same circumstances. See, e.g., United States v.

Schostag, 895 F.3d 1025, 1028 (8th Cir. 2018) (“Although some medical marijuana is legal in Minnesota

as a matter of state law, the state’s law conflicts with

federal law.”).

Finally, the Minnesota Workers’ Compensation Act

obligates “[e]very employer . . . to pay compensation

in every case of personal injury . . . of an employee

arising out of and in the course of employment without regard to the question of negligence.” Minn.

Stat. § 176.021, subd. 1. To satisfy this obligation,

the employer must “furnish any medical . . . treatment, including . . . medicines” necessary to treat an

employee’s work-related injury. Minn. Stat. § 176.135,

subd. 1.

B. Proceedings Below

In 2019, Musta received approval under the THC

Act to use medical marijuana to treat “chronic pain”

that she had been experiencing since a work-related

injury sixteen years earlier. Pet. App. 3a; see Pet. 810. Musta then obtained medical marijuana from

a state-authorized distributor. Pet. App. 48a. She

paid for her initial marijuana purchase out-of-pocket

but requested reimbursement from Respondents

under the Minnesota Workers’ Compensation Act.

Id. at 48a-49a. Respondents denied the request for

reimbursement on the ground that federal law preempts

any state-law obligation to reimburse employees for

buying marijuana. Id. at 49a.

On August 8, 2019, the parties appeared before a

compensation judge. Id. At issue was only federal

preemption, because Respondents, for the purposes of

the proceeding, did not challenge whether Musta’s

use of marijuana and reimbursement request complied with requirements set by Minnesota state law.

Id. The compensation judge recommended that an

Administrative Law Judge (“ALJ”) certify the federal

preemption question to the Minnesota Supreme

Court. Id. at 6a. The ALJ did so, but the Minnesota

Supreme Court declined to accept the certified

question and sent the matter back to the compensation judge for resolution. Id.

On November 13, 2019, the compensation judge

concluded that there was no federal preemption and

ordered Respondents to reimburse Musta for the cost

of her marijuana. Id. at 59a. Respondents appealed

to the Worker’s Compensation Court of Appeals, which

held that it lacked authority to address federal

preemption; avoiding the sole disputed issue in the

case, it affirmed the compensation judge’s order

insofar as it required reimbursement. Id. at 47a-52a.

On October 13, 2021, the Minnesota Supreme

Court issued a decision reversing the decision of the

Worker’s Compensation Court. Id. at 1a-30a. It first

agreed with the Worker’s Compensation Court that

that court lacked jurisdiction under Minnesota law to

decide the preemption issue. Id. at 11a. The

Minnesota Supreme Court then held that the CSA’s

prohibition on marijuana use preempts Minnesota

law insofar as it requires an employer to “‘furnish’”

an injured employee with medical marijuana by

reimbursing the purchase of that marijuana. Id. at

3a-4a, 29a-30a (quoting Minn. Stat. § 176.135, subd. 1

(2020)). The court reasoned that state law could not

compel Respondents to facilitate marijuana possession

in violation of federal law. Id. at 21a. The court also

noted that compliance with an order requiring reimbursement for medical marijuana “would expose the

employer to criminal liability under federal law for

aiding and abetting [the employee’s] unlawful possession of cannabis.” Id. at 4a. The court concluded:

“As it is impossible to comply with both state

and federal law, the compensation court’s order is

preempted by the CSA.” Id. at 29a (footnote omitted).

Musta then filed her Petition to this Court,

challenging the Minnesota Supreme Court’s analysis

of the federal preemption question.

REASONS FOR DENYING THE PETITION

I. The

petition

questions.

presents

case-specific

As a preliminary matter, this case is a poor vehicle

for review because the dissolution of Musta’s employer

could muddle or hinder further review of the underlying substantive federal preemption question.

As clearly reflected in the records of the Secretary

of State of Minnesota,3 Musta’s employer, Mendota

Heights Dental Center, P.A. (misidentified as only

“Mendota Heights Dental Center” in the captions

below), was formally dissolved in 2020—before the

Minnesota Supreme Court issued its decision in

this case. See Business Record Details for “Mendota

Heights Dental Center, P.A.,” Minnesota Sec’y of

State,

https://mblsportal.sos.state.mn.us/Business/

This Court may take judicial notice of the records of the

Minnesota Secretary of State. See Fed. R. Evid. 201 (“The court

may judicially notice a fact that is not subject to reasonable

dispute because it . . . can be accurately and readily determined

from sources whose accuracy cannot reasonably be questioned.”);

see also, e.g., Swindol v. Aurora Flight Scis. Corp., 805 F.3d 516,

519 (5th Cir. 2015) (taking judicial notice of “public records

contained on the Mississippi Secretary of State’s and the Virginia

State Corporation Commission’s websites” because such records

“cannot reasonably be questioned”); Noble Sys. Corp. v. Alorica

Cent., LLC, 543 F.3d 978, 982 (8th Cir. 2008) (affirming district

court’s decision “to take judicial notice of [a] financing statement . . . filed with the Minnesota Secretary of State”); cf. Knight

v. United Land Ass’n, 142 U.S. 161, 169 (1891) (taking judicial

notice of “the records of the interior department”).

SearchDetails?filingGuid=d1b69eab-abd4-e011-a886001ec94ffe7f (last visited Jan. 11, 2022).4

The

Minnesota Supreme Court’s decision did not address

the legal effect of the dissolution.

Musta’s employer’s dissolution could complicate or

impede this Court’s analysis of the underlying

federal preemption question. The dissolution raises

idiosyncratic case-specific questions, including to

what extent an employer that does not exist has statelaw obligations to furnish medical marijuana and

can be liable under federal law for aiding and abetting

drug crimes proscribed by the CSA, and what effect

(if any) the employing corporation’s dissolution has on

the potential federal law liability of a workers’ compensation insurer satisfying an obligation of a nowdefunct entity. To the extent that the Court wishes to

address the relationship between the CSA and state

medical marijuana law, cases will arise that pose

fewer complex case-specific questions and are likely to

yield a more broadly-applicable holding. In short, this

is a poor vehicle for review of the question presented.

The website of the Minnesota Secretary of State reflects that

another Minnesota dentist currently uses the name “Mendota

Heights Dental Center” for his practice, but it is not the same

corporation as “Mendota Heights Dental Center, P.A.” and the

new corporation named “Mendota Heights Dental Center” did not

exist at the time of Musta’s employment and injury. See Business

Record Details for “Mendota Heights Dental Center,” Minnesota

Sec’y of State, https://mblsportal.sos.state.mn.us/Business/Se

archDetails?filingGuid=dbfaf68a-cd87-e911-9175-00155d01b32c

(last visited Jan. 11, 2022); see also Pet. App. 48a (identifying

Musta’s injury date as February 11, 2003).

II. An opinion issued in this case could

swiftly become moot.

This is also not the right time for the U.S. Supreme

Court to address the federal preemption issue that

this case presents. The legal framework regarding

marijuana use is currently evolving at a rapid pace,

which could at any moment alter or eliminate key

building blocks for any decision in this matter and

potentially render the decision itself moot.

Nationwide, state law on marijuana use is in a

period of seismic change. A growing number of

states have recently enacted legislation to limit or

eliminate state-law criminal liability for marijuana

use. New laws are enacted every year, with the scope

of permitted marijuana use varying widely by state,

and with each state offering a unique set of procedural requirements for use. See, e.g., State Medical

Cannabis Laws, National Conference of State Legislatures, https://www.ncsl.org/research/health/state-med

ical-marijuana-laws.aspx; Map of Marijuana Legality

by State, DISA Global Solutions, https://disa.com/mapof-marijuana-legality-by-state.

The federal government’s response to the ongoing

shifts in state law appears to be a work in progress.

See Wright’s Case, 156 N.E.3d 161, 165 (Mass. 2020)

(“[T]he current legal landscape of medical marijuana

law may, at best, be described as a hazy thicket.”);

Pet. App. 22a (describing “the federal government’s

position on criminal prosecution of cannabis offenses”

as “in a state of flux”). During the administration

of President Barack Obama, guidance from senior

DOJ personnel deprioritized—but did not prohibit—

federal prosecution for marijuana offenses. However,

during the administration of President Donald

Trump, the Attorney General rescinded “previous

nationwide guidance specific to marijuana enforcement.” Memorandum for All United States Attorneys

1 (Jan. 4, 2018); see Wright’s Case, 156 N.E.3d at

165, 169 (“[T]he Department of Justice has issued,

revised, and revoked memoranda explaining its marijuana enforcement practices and priorities, leaving

in place no clear guidance. . . . [T]he Department

of Justice has reversed its own stance toward the

prosecution of medical marijuana cases multiple

times.”). The Biden administration has sent mixed

messages on marijuana use, expressing some public

support for legalization while simultaneously making

headlines for suspending marijuana users within

the administration’s own staff.

See Andrew

Wasserman, Cannabis and federal legalization: What

to expect in 2021, 2021 WL 1658526 (2021) (describing

how the Biden administration “has sown confusion

about future legalization efforts”). Future changes in

presidential administrations “could shift enforcement

priorities to place greater emphasis on prosecuting

marijuana offenses.” United States v. McIntosh, 833

F.3d 1163, 1179 n.5 (9th Cir. 2016).

In another fleeting and constantly-disappearing

attempt to grapple with the influx of state marijuana

laws, Congress has passed certain annual riders

in appropriations bills that prohibit the use of

congressionally-allocated funds to prevent the

implementation of “[s]tate laws that authorize the

use, distribution, possession, or cultivation of

medical marijuana.”

Consolidated and Further

Continuing Appropriations Act, 2015, Pub. L. No.

113–235, § 538, 128 Stat. 2130, 2217 (2014). These

riders have appeared in annual appropriations bills

since 2014. See, e.g., Consolidated Appropriations

Act, 2021, Pub. L. No. 116-260, § 531, 134 Stat. 1182,

1282-83 (2020); United States v. Pisarski, 965 F.3d

738, 741 (9th Cir. 2020); United States v. Trevino, 7

F.4th 414, 419-20 (6th Cir. 2021). The current rider,

contained in the Consolidated Appropriations Act of

2021, will remain in effect only until February 18,

2022, under the Further Extending Government

Funding Act, 2021, Pub. L. No. 117-70, 135 Stat. 1499

(2021).

Many of Musta’s arguments focus specifically on the

effect of these riders, suggesting they somehow

ameliorate the conflict between state and federal law.

See, e.g., Pet. at 2-4, 6, 19, 29-30. As discussed in

further detail in Section IV below, these arguments

are wrong on the merits, as the riders do not decriminalize marijuana at the federal level and only address

the likelihood of prosecution for individuals who have

violated federal law. But, perhaps more importantly

for purposes of the instant Petition, these arguments

also rest substantially on speculation that the riders

will appear in future appropriations bills.

In fact, this Congressional stop-gap measure is

ephemeral by design. The appropriations act changes

every year and, as the Minnesota Supreme Court

recognized, there is no guarantee that the restriction

will appear in any future act. See Pet. App. 22a (“The

riders are merely temporary measures that can be

rescinded at any time . . . .”). As the Ninth Circuit has

recognized, should the rider not appear in a future

year’s appropriations bill, a violator of the CSA could

be criminally prosecuted even if the violation occurred

in a year when the rider was in effect:

The federal government can prosecute [marijuana] offenses for up to five years after they

occur. See 18 U.S.C. § 3282. Congress

currently restricts the government from

spending certain funds to prosecute certain

individuals. But Congress could restore

funding tomorrow, a year from now, or four

years from now, and the government could

then prosecute individuals who committed

offenses while the government lacked

funding.

McIntosh, 833 F.3d at 1179 n.5. Thus, should this

Court issue a decision resting on the existence of an

appropriations rider, that decision could become

baseless in a matter of months. (And, again, no decision in this case should actually turn on the riders;

even with these transient measures, marijuana

remains listed in Schedule I and the conflict between

state and federal law persists. See infra Section IV.)

The conflict between the CSA and Minnesota’s THC

Act could also entirely resolve at any time. One

possible resolution of the conflict would be the rescheduling of marijuana. Rescheduling is an administrative

prerogative of the federal executive branch. “The

CSA provides for the periodic updating of schedules

and delegates authority to the Attorney General, after

consultation with the Secretary of Health and Human

Services, to add, remove, or transfer substances to,

from, or between schedules.” Raich, 545 U.S. at 14–

15. The Attorney General may initiate the rescheduling of marijuana “(1) on his own motion, (2) at the

request of the Secretary, or (3) on the petition of any

interested party.” 21 U.S.C. § 811(a). As state law

treatment of marijuana continues to evolve nationwide, “considerable efforts” have been made to seek

rescheduling under federal law. Raich, 545 U.S. at

15. While these efforts have not yet succeeded, see,

e.g., Denial of Petition to Initiate Proceedings to

Reschedule Marijuana, 81 FR 53767-01 (Aug. 12,

2016), national support for marijuana legalization at

the federal level is substantial and growing, see, e.g.,

Danielle Grant-Keane, The Unattainable High of

the Marijuana Industry, 90 Wis. L. 14, 20 (2017) (“The

legalization of medical and recreational marijuana

will only continue to grow. Only 12 percent of

individuals supported legalizing cannabis in 1969.

Today, more than 60 percent of the public supports

marijuana legalization. And support for medicinal

marijuana under the supervision of a doctor is now

close to 90 percent.” (footnotes omitted)). A decision

by the federal executive branch to reschedule marijuana could be prompted by public opinion, political

considerations, or the evolving study by scientists of

the effects of marijuana.

Given that this area of law is evolving at such a

rapid pace—both because states are increasingly

changing their marijuana laws, and because the

federal government (at both the legislative and executive levels) continues to make and weigh changes to

federal law—this is not an opportune moment for

this Court to take up the issue of the CSA’s preemption

of state workers’ compensation statutes requiring

reimbursement for medical marijuana purchases. The

foundation under any decision by this Court in this

case could crumble suddenly, rendering the decision

a nullity.

III. The modest state supreme court split

signals that state courts would benefit

from further time to develop these issues.

In asking this Court to grant her Petition, Musta

argues that further review is necessary to resolve a

small 2-2 split in state supreme court authority. See

Pet. at 16. She acknowledges that the Minnesota

Supreme Court’s decision in this case aligned with

the Maine Supreme Court decision in Bourgoin v.

Twin Rivers Paper Co., LLC, which held that the

CSA preempts the Maine Medical Use of Marijuana

Act (“MMUMA”) insofar as the MMUMA serves as

the basis for an order requiring an employer to subsidize an employee’s acquisition of medical marijuana.

187 A.3d 10 (Me. 2018). She also points to two

decisions—Appeal of Panaggio, 260 A.3d 825 (N.H.

2021), and Hager v. M&K Constr., 246 N.J. 1 (2021)—

that point in the opposite direction. But Musta’s split

argument only highlights the fact that, in the veritable deluge of new marijuana laws passed in the

vast majority of states, see Pet. at 3 (stating that fortyseven states “permit the use of marijuana or related

substances for medical purposes”), only four state

supreme courts have as of yet had time to even begin

to address federal preemption in the context of workers’ compensation laws. Forty-three state supreme

courts have not yet addressed the issue.

This is a fledgling, emerging issue: three of those

four state supreme court decisions were issued just

last year. See Pet. at 21 (acknowledging that three

of the four state supreme court decisions were “in

2021 alone”). With even just a small amount of

additional time, we can expect more state supreme

courts to address the relationships between their

various new marijuana laws, workers’ compensation

laws, and the CSA. This Court would benefit from

allowing the state courts more time to fully identify,

develop, and resolve the key arguments on either side

of the issue.

Moreover, as Musta acknowledges, the new state

laws on marijuana have triggered numerous preemption issues reaching far beyond the workers’ compensation context. See Pet. at 5 (“[C]ourts have been

bedeviled with difficult questions regarding how to

apply state marijuana laws in the shadow of the

federal prohibition on marijuana.”). If the Court seeks

to issue a decision addressing the conflict between

the CSA and state marijuana laws, the Court would be

better served in choosing one of the many contexts in

which lower courts have had more time to issue

decisions considering the relevant conflict. Some of

these contexts even involve the effect of the medical

marijuana laws on the employer-employee relationship.

For example, numerous state and federal courts

have, for more than a decade, been considering

whether state law can force an employer to accommodate an employee’s medical marijuana use in violation of the CSA. Most but not all of these cases

have held that a state law cannot force an employer

to ignore a federal law. See, e.g., Emerald Steel

Fabricators, Inc. v. Bureau of Lab. & Indus., 230

P.3d 518, 520, 529 (Or. 2010) (“[E]mployer was not

required to accommodate employee’s use of medical

marijuana. . . . To the extent that [state law] affirmatively authorizes the use of medical marijuana,

federal law preempts that subsection, leaving it

without effect.” (internal quotation marks omitted)

(emphasis added)).5 Some of the state supreme court

See also Washburn v. Columbia Forest Prod., Inc., 134 P.3d

161, 166-68 (Or. 2006) (Kistler, J., concurring) (“Federal law

preempts state employment discrimination law to the extent

that it requires employers to accommodate medical marijuana

use. . . . The 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.”); Cotto v.

Ardagh Glass Packing, Inc., 2018 WL 3814278, at *7 (D.N.J. Aug.

10, 2018) (“[M]ost courts have concluded that the decriminalization of medical marijuana does not shield employees from

decisions in this context expressly rest not on

preemption by the CSA but on a conclusion that the

state medical marijuana law at issue did not intend

to regulate an employer’s conduct. See Ross v.

RagingWire Telecommunications, Inc., 174 P.3d 200,

203 (Cal. 2008) (“Nothing in the text or history of

[California’s medical marijuana law] suggests the

voters intended the measure to address the respective

rights and duties of employers and employees. Under

California law, an employer may require preemployment drug tests and take illegal drug use into

consideration in making employment decisions.”

(emphasis added)); Roe v. TeleTech Customer Care

Mgmt. (Colorado) LLC, 257 P.3d 586, 591–92 (Wash.

2011) (state marijuana law “does not regulate the

conduct of a private employer or protect an employee

from being discharged because of authorized medical

marijuana use” (emphasis added)). But, as Musta’s

petition acknowledges, federal preemption concerns

likely animate those decisions. See Pet. at 24 (arguing

that state courts are crafting interpretations of state

medical marijuana laws “in order to avoid federal

preemption concerns”).

The accommodation cases are but one example

from the sea of questions raised by state medical

marijuana legislation. Other representative examples

adverse employment actions.”); Garcia v. Tractor Supply Co., 154

F. Supp. 3d 1225, 1230 (D.N.M. 2016) (rejecting employee’s

claims of wrongful termination for medical marijuana use

because “[t]o affirmatively require [an employer] to accommodate” an employee’s “illegal [marijuana] use would mandate [the

employer] to permit the very conduct the CSA proscribes”);

Lambdin v. Marriott Resorts Hosp. Corp., 2017 WL 4079718,

at *10 (D. Haw. Sept. 14, 2017) (“A state law decriminalizing

marijuana use does not create an affirmative requirement for

employers to accommodate medical marijuana use.”).

include the question of whether marijuana odor

provides probable cause for a search in a state that

has authorized medical marijuana use, see, e.g., State

v. Senna, 79 A.3d 45, 50–51 (Vt. 2013); the question

of whether local authorities may withhold concealed

handgun licenses from registered medical marijuana

users who otherwise qualify for such licenses, see, e.g.,

Willis v. Winters, 253 P.3d 1058, 1060 (Or. 2011); and

the question of whether abstention from medical

marijuana use is a proper condition of probation, see,

e.g., Baker v. State, 488 P.3d 579 (Nev. 2021). To the

extent the Court seeks to address the tension between

the CSA and state laws regarding medical marijuana,

there are many other available issues far readier for

review than the emerging issue raised in this case.

IV. The decision below correctly applied wellsettled law on preemption.

Further review is also unnecessary because the

decision below is correct and rests soundly on

longstanding precedent. This Court has already

clarified the relevant federal preemption principles:

The Supremacy Clause of the United States Constitution “unambiguously provides that if there is

any conflict between federal and state law, federal

law shall prevail.” Raich, 545 U.S. at 29; 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.”); Arizona, 567 U.S. at 399 (“Congress has

the power to preempt state law.”).

This Court has “identified three different types of

preemption—‘conflict,’ ‘express,’ and ‘field’—but all

of them work in the same way: Congress enacts a

law that imposes restrictions or confers rights on

private actors; a state law confers rights or imposes

restrictions that conflict with the federal law; and

therefore the federal law takes precedence and the

state law is preempted.” Murphy v. Nat’l Collegiate

Athletic Ass’n, 138 S. Ct. 1461, 1480 (2018) (citation

omitted). Conflict preemption occurs where state

law “impose[s] a duty that [i]s inconsistent—i.e., in

conflict—with federal law.” Id.; see Mut. Pharm. Co.,

570 U.S. at 479–80 (“[I]t has long been settled that

state laws that conflict with federal law are without

effect.” (internal quotation marks omitted)). Express

preemption occurs where Congress enacts a statute

that expressly states an intent to preempt state law.

Arizona, 567 U.S. at 399. Field preemption occurs

where “federal law occupies a field of regulation so

comprehensively that it has left no room for supplementary state legislation.” Murphy, 138 S. Ct. at

1480 (internal quotation marks omitted).

Though this Court has cautioned that “these

categories are not rigidly distinct,” Virginia Uranium,

Inc. v. Warren, 139 S. Ct. 1894, 1901 (2019) (internal

quotation marks omitted), the category at issue here

is conflict preemption, which arises “where compliance

with both state and federal law is impossible, or

where the state law stands as an obstacle to the

accomplishment and execution of the full purposes

and objectives of Congress,” Oneok, Inc. v. Learjet,

Inc., 575 U.S. 373, 377 (2015) (internal quotation

marks omitted). Impossibility occurs when state law

requires what federal law forbids. See Mut. Pharm.

Co., 570 U.S. at 480 (state law is “impliedly preempted where it is impossible for a private party to

comply with both state and federal requirements”

(internal quotation marks omitted)).

In the CSA, Congress clarified the scope of preemption by including the following provision:

No provision of this subchapter 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 subchapter and

that State law so that the two cannot

consistently stand together.

21 U.S.C. § 903 (emphasis added). This provision “is

an express invocation of conflict preemption.” Oregon

Prescription Drug Monitoring Program v. U.S. Drug

Enf’t Admin., 860 F.3d 1228, 1236 (9th Cir. 2017);

see also Bourgoin, 187 A.3d at 14 (“Congress 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.

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.”

(citations omitted)). Accordingly, in the decision

below, the Minnesota Supreme Court properly considered whether there is “a positive conflict between” the

CSA and Minnesota state law “so that the two cannot

consistently stand together.” 21 U.S.C.S. § 903.6

After concluding that the CSA preempts the order for

reimbursement under the impossibility theory of conflict preemption, the Minnesota Supreme Court declined to address the

obstacle theory of conflict preemption. Pet App. 20a.

Plainly, such a conflict exists. The CSA prohibits

marijuana use, including medical marijuana use.

Federal law criminalizes not only those who use

marijuana in violation of the CSA but also those who

aid and abet such use. See 18 U.S.C. § 2(a). In

contrast, Minnesota state law authorizes medical

marijuana use under the THC Act and requires

employers to facilitate employees’ medical marijuana

use under the Minnesota Workers’ Compensation

Act. An employer subject to an order to “furnish”

an employee with medical marijuana, Minn. Stat.

§ 176.135, subd. 1, simply cannot simultaneously

comply with both state and federal law, see Schostag,

895 F.3d at 1028 (“Although some medical marijuana

is legal in Minnesota as a matter of state law, the

state’s law conflicts with federal law.”).

It is

impossible for Respondents to comply with both

their state-law duty to aid Musta in obtaining

marijuana and their federal-law duty not to aid anyone in obtaining marijuana. Cf., e.g., Mut. Pharm. Co.,

570 U.S. at 480 (because “it was impossible for [the

plaintiff] to comply with both its state-law duty to

strengthen the warnings on [a drug] label and its

federal-law duty not to alter [the drug] label, . . . the

state law is pre-empted”).

The Minnesota Supreme Court properly recognized

that an employer who “furnishes” an employee with

medical marijuana could incur criminal liability for

aiding and abetting a drug crime under the CSA and

18 U.S.C. § 2(a). As noted above, liability under § 2(a)

requires only (1) “an affirmative act in furtherance

of that offense, (2) with the intent of facilitating the

offense’s commission.” Rosemond, 572 U.S. at 71. An

employer who reimburses an employee’s purchase of

medical marijuana has performed an affirmative

act in furtherance of the employee’s marijuana

possession, with the intent of facilitating the marijuana possession.

In her petition and below, Musta has argued that

the employer would not have the intent required for

criminal liability under § 2(a) because the employer

would have no independent personal interest in

facilitating the employee’s federally unlawful marijuana possession and would only do so reluctantly

to meet an obligation under state law. Pet. at 27-28.

But this argument ignores binding Supreme Court

precedent focusing the § 2(a) intent inquiry on

knowledge, rather than volition or personal desire.

This Court has held that, as to the intent required,

“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,” Rosemond, 572 U.S. at 77 (emphasis

added), and “[t]he law does not, nor should it, care

whether [a defendant] participates with a happy

heart or a sense of foreboding,” id. at 79-80; see also

Dixon v. United States, 548 U.S. 1, 6 (2006) (rejecting

argument that defendant never “formed the necessary mens rea for these crimes because she did not

freely choose to commit the acts in question” and her

“will was overborne”; critically, the defendant “still

knew” what she was doing (emphasis in original));

Wright v. Pioneer Valley, 2019 WL 3323160, at *5

(Mass. Dept. Ind. Acc. Feb. 14, 2019) (“[A]ny insurer

payments would be made knowing that the insurer

was participating in activity in contravention to

federal laws and policies, even if under an order

from an administrative judge.” (emphasis added)),

aff’d on other grounds, Wright’s Case, 156 N.E.3d 161

(2020). Under this Court’s longstanding precedent,

an employer could thus have the requisite intent to

facilitate the employee’s marijuana possession’s

commission simply by virtue of having full knowledge

that the employer is subsidizing the employee’s

marijuana possession.

Musta further argues that § 2(a) liability would not

attach to her employer because, at the time of reimbursement, “the crime was complete” and thus “the

employer would not be facilitating any element of

the offense.” Pet. at 27. This argument mischaracterizes the nature of the offense and of the obligation Musta has always sought to impose on her

employer, since the first time she asked for reimbursement for marijuana purchased as treatment for

“chronic pain.” Pet. App. 3a (emphasis added). Where

an employer begins reimbursing an employee for

medical marijuana treatment for “chronic pain,” the

reasonable expectation of both parties is that this is

not a facilitation of one-time marijuana use but rather

the facilitation of an ongoing marijuana treatment

plan, involving ongoing marijuana possession through

multiple purchases. Musta does not argue that her

reimbursement relationship with Respondents was

to be limited to a single purchase of medical marijuana and that her use of marijuana would be

“complete” following that one-time use. Rather, in

seeking reimbursement for a “chronic pain” treatment,

Musta made clear to Respondents her intent to enter

into a relationship in which Respondents would

facilitate her ongoing marijuana use over multiple

purchases, with each individual reimbursement enabling her to make the next purchase.7 Musta does

not dispute that that is, as a practical matter, what

would happen in the future if Respondents began

reimbursing her. Nor can she reasonably dispute

A case involving a prescription for medical marijuana for

one-time acute pain might present different issues.

that Respondents would act with full knowledge and

expectation that that is, as a practical matter, what

would happen in the future. In any event, “aiding and

abetting a drug offense may encompass activities[]

intended to ensure the success of the underlying

crime[] that take place after . . . the principal no longer

possesses the [illegal substance].” United States v.

Ledezma, 26 F.3d 636, 643 (6th Cir. 1994). Thus, the

Minnesota Supreme Court properly rejected Musta’s

“completion” argument.

Like the Minnesota Supreme Court, the Maine

Supreme Court has recognized that, “were [an

employer] to comply with [a reimbursement] order

by subsidizing [an employee’s] use of medical marijuana, [the employer] would be engaging in conduct

that meets all of the elements of criminal aiding and

abetting as defined in section 2(a).” Bourgoin, 187

A.3d at 17; see id. at 19 (the employer “would be

aiding and abetting [the employee]—in his purchase,

possession, and use of marijuana—by acting with

knowledge that it was subsidizing [the employee’s]

purchase of marijuana.”). Because the reimbursement order compels the insurer to do what the

CSA forbids, the order must yield to the CSA.

Ultimately, “a person’s right to use medical marijuana

cannot be converted into a sword that would require

another party, such as [an employer], to engage in

conduct that would violate the CSA.” Id. at 20.

The Colorado Supreme Court has reasoned similarly

in the related matter of People v. Crouse, 388 P.3d

39 (Co. 2017). There, the constitution of the state of

Colorado required police officers to return seized

medical marijuana if the owner was acquitted of the

underlying state drug charge. Id. at 41. The Colorado

Supreme Court held that the CSA preempted that

state constitutional mandate “because compliance

with one law necessarily requires noncompliance with

the other.” Id. at 42. The court explained that “[a]n

officer returning marijuana to an acquitted medical

marijuana patient will be delivering and transferring

a controlled substance” and will “distribute marijuana

in violation of the CSA.” Id. Thus, “there is a positive

conflict between the [state law] and the CSA such that

the two cannot consistently stand together.” Id. An

actor cannot at the same time distribute marijuana

and not distribute marijuana, and the latter obligation—the federal rule prohibiting distribution—must

prevail under the Supremacy Clause.

The Massachusetts Supreme Judicial Court has also

recognized that federal preemption would apply to an

employer’s state-court obligation to reimburse an

employee for medical marijuana purchases under a

state workers’ compensation policy. Wright’s Case

held that the state’s medical marijuana law did not

impose a reimbursement requirement on an employer.

The court reasoned that the state legislature had

carefully structured the state statute with the intent

to avoid federal preemption:

[T]o determine whether medical marijuana

expenses may be compensable at all, we . . .

must . . . seek to avoid conflict with Federal

law and possible preemption under the

supremacy clause.

The [state medical

marijuana] act itself, we conclude, is drafted

with these concerns in mind. It expressly

recognizes the Federal legal pitfalls and seeks

to steer well clear of them by carving a narrow

path through the marijuana regulatory

thicket.

Wright’s Case, 156 N.E.3d at 171–72 (internal citations omitted). The Massachusetts Supreme Court

explained that state law certainly cannot compel an

actor to violate federal law and expose itself to

criminal liability and other penalties:

[U]nlike . . . patients and doctors . . . ,

insurance companies would not be participating in the patient’s use of a federally

proscribed substance voluntarily. It is one

thing to voluntarily assume a risk of Federal

prosecution; it is another to involuntarily

have such a risk imposed upon you. . . .

[P]ossession and distribution of marijuana

remain federally illegal, as does aiding or

abetting such possession or distribution. See

18 U.S.C. § 2(a); 21 U.S.C. § 844(a). It is not

unreasonable, given the current hazy regulatory environment and shifting winds of

Federal enforcement, for insurance companies to fear that paying for a claimant’s

marijuana could expose them to potential

criminal prosecution. Further, insurance

companies are typically involved in interstate

commerce, thereby raising Federal regulators’ concerns. . . . It is one thing for a State

statute to authorize those who want to use

medical marijuana, or provide a patient with

a written certification for medical marijuana,

to do so and assume the potential risk of

Federal prosecution; it is quite another for it

to require unwilling third parties to pay for

such use and risk such prosecution.

Id. at 109-110, 166. Wright’s Case underscores why

the Minnesota Supreme Court declined to impose an

obligation on Respondents to pay for marijuana in this

case: if the state statute required reimbursement, it

would be not just permitting but forcing Respondents

to violate federal law.8

Lastly, the Minnesota Supreme Court also correctly

rejected arguments that the DOJ’s ever-shifting

guidance regarding the prosecution of marijuana

offenses, as well as the congressional appropriation

riders that temporarily forestall marijuana-related

prosecutions, could “suspend the illegality of cannabis

under the CSA or take precedence over that law.” Pet.

App. 22a; cf. Pet. at 29-30. These arguments confuse

the likelihood of prosecution for CSA violations with

the relevant preemption question: whether the state

law at issue requires what federal law forbids. The

impermanent-by-design measures of DOJ directives

and appropriations riders have to do with the practical

Wright’s Case also supports a potential alternate ground for

affirmance of the Minnesota Supreme Court’s decision.

Minnesota’s THC Act could be construed as Wright’s Case

construed Massachusetts’ state medical marijuana statute: not to

contain the preemption-triggering reimbursement requirement.

No provision of the THC Act authorizes the involuntary participation of a third-party in medical marijuana use. The THC Act is

premised on consent to participate, not compulsion. It does not,

for example, compel physicians to prescribe medical marijuana.

See State v. Thiel, 846 N.W.2d 605, 613 n.2 (Minn. Ct. App. 2014).

Employers, schools, and landlords expressly cannot be ordered to

violate federal law to accommodate an employee’s, student’s, or

tenant’s medical marijuana use. See Minn. Stat. § 152.32, subd.

3(a), (c). Medical assistance programs for Minnesotans with low

incomes who lack access to affordable health care coverage are

expressly not required to reimburse an enrollee or a provider for

costs associated with medical marijuana use. See Minn. Stat.

§ 152.23(b). The THC Act contains no provision suggesting that

the Minnesota legislature intended, or attempted, to order any

unwilling person to violate federal law.

consequences of engaging in conduct that is illegal

under federal law, not with the illegality itself. See

Bourgoin, 187 A.3d at 21 (DOJ memo “made clear

that it was directed only to the question of enforcement

of laws but did nothing to challenge their existence”

and has in any event already been revoked, emphasizing its “transitory” nature (emphasis in original));

accord Wright’s Case, 156 N.E.3d at 172 n.11 (“[T]he

recent rescission of the Obama administration’s

medical marijuana guidance demonstrates that enforcement is transitory and subject to change. Further, . . .

such guidance was directed only to the question of

enforcement of laws but did nothing to challenge their

existence[.]” (internal quotation marks omitted)

(emphasis in original)).

Critically, the appropriations bill riders and shifting

DOJ directives have not changed the fact that the

CSA continues to proscribe marijuana possession,

distribution, and manufacture under federal law.

The federal government has never, even temporarily,

removed marijuana from Schedule I. See, e.g., United

States v. Kleinman, 880 F.3d 1020, 1028 (9th Cir.

2017) (appropriations rider “did not change any substantive law; it merely placed a temporary hold on

the expenditure of money for a certain purpose”).

Neither the availability of prosecutorial funding nor

an existing or historical threat of prosecution are

elements of federal conflict preemption. See Bourgoin,

187 A.3d at 21 (explaining that “the magnitude of

the risk of criminal prosecution is immaterial in this

case” because, “[p]rosecuted or not, the fact remains

that [an employer] would be forced to commit a federal

crime if it complied with the directive” to reimburse

an employee for a medical marijuana purchase.). As

the Minnesota Supreme Court correctly acknowledged, the federal preemption analysis does not turn

on whether parties are likely to get away with

violating federal law; the analysis simply turns on

whether conduct mandated under state law actually

violates federal law. See, e.g., Mut. Pharm. Co., 570

U.S. at 480; see also Pet. App. 23a (“Impossibility

preemption does not turn on speculation about future

prosecutorial decisions, but on whether compliance

with both state and federal law is impossible.”).

To be sure, the appropriations bills and various

DOJ directives may reflect shifting cultural attitudes

towards marijuana use. And, indeed, there may be

strong arguments that the medical community has

increasingly begun to find acceptable uses for marijuana, that the prosecution of marijuana offenses has

exacerbated societal inequities, and that marijuana

should be rescheduled—or the CSA changed—to

accurately reflect our nation’s evolving values. But

federal preemption does not involve policy positions

or value judgments. This Court has already clarified

that debates over Congress’s policy judgments involving marijuana, and the contrary arguments raised

by medical marijuana proponents, are not appropriately resolved by the courts. See, e.g., Raich, 545

U.S. at 9 (acknowledging strong arguments against

Congress’s scheduling judgment but responding that

“[t]he question before us . . . is not whether it is

wise to enforce the [CSA] in these circumstances”

(emphasis added)). “Once Congress, exercising its

delegated powers, has decided the order of priorities in

a given area, it is for the courts to enforce them when

enforcement is sought.” Oakland Cannabis Buyers’

Co-op., 532 U.S. at 497 (internal quotation marks

and alteration omitted)). A court’s “choice is not

whether enforcement is preferable to no enforcement

at all,” and it “may not consider the advantages and

disadvantages of nonenforcement of the statute.” Id.

at 498. The Minnesota Supreme Court’s decision

properly adhered to this Court’s directive that a “court

cannot . . . override Congress’ policy choice, articulated

in a statute, as to what behavior should be prohibited.”

Id. at 497.

In sum, the Minnesota Supreme Court relied on

well-established principles of federal preemption law

in correctly recognizing the positive conflict between

the CSA—which criminalizes marijuana use even as a

medical treatment—and Minnesota state law—which

decriminalizes marijuana use as a medical treatment

and requires an employer to “furnish” medical treatments to employees. Because the Minnesota Supreme

Court properly held that the CSA preempts Minnesota

state law to the extent it requires an employer to

reimburse an employee for the purchase of medical

marijuana, there is no need for further review.

CONCLUSION

This is the wrong time, and the wrong case, for a

U.S. Supreme Court decision. The nonexistence of

Musta’s employer renders this case a poor vehicle

for review. Further, any decision issued in this matter

could swiftly become moot as circumstances continue

to evolve, at both the state and federal level, in both

legislatures and the federal executive branch. This

Court would also benefit from allowing state courts

more time to address the issue presented. Finally,

the Minnesota Supreme Court’s decision faithfully

applied this Court’s well-settled authority on federal

preemption. For these reasons, Respondents request

that the Court deny the Petition.

Respectfully submitted,

JONATHAN M. FREIMAN

Counsel of Record

WIGGIN AND DANA LLP

One Century Tower

265 Church Street

New Haven, CT 06510

(203) 498-4400

jfreiman@wiggin.com

Counsel for Respondents

January 14, 2022

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.