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

No. 21-676

IN THE

Supreme Court of the United States

_________

SUSAN K. MUSTA,

Petitioner,

v.

MENDOTA HEIGHTS DENTAL CENTER, AND HARTFORD

INSURANCE GROUP,

Respondents.

________

On Petition for a Writ of Certiorari

to the Minnesota Supreme Court

________

SUPPLEMENTAL BRIEF IN SUPPORT OF

PETITION FOR A WRIT OF CERTIORARI

________

THOMAS D. MOTTAZ

CHERI M. SISK

MOTTAZ & SISK INJURY LAW

3340 Northdale Blvd. NW, #140

Coon Rapids, MN 55448

(763) 421-8226

tmottaz@mottazlaw.com

csisk@mottazlaw.com

ADAM G. UNIKOWSKY

Counsel of Record

JENNER & BLOCK LLP

1099 New York Ave., NW

Suite 900

Washington, DC 20001

(202) 639-6000

aunikowsky@jenner.com

i

TABLE OF CONTENTS

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

ARGUMENT ...................................................................... 3

I.

The government’s implied preemption

theory is meritless. ................................................. 3

II.

This case warrants Supreme Court

review. .................................................................... 10

III.

Musta is the better vehicle. ................................ 12

CONCLUSION ................................................................ 13

ii

TABLE OF AUTHORITIES

CASES

Arizona v. United States, 567 U.S. 387

(2012) .......................................................................... 4

CTS Corp. v. Waldburger, 573 U.S. 1 (2014) .............. 7

Gonzales v. Raich, 545 U.S. 1 (2005) ............................ 8

Merck Sharpe & Dohme Corp. v. Albrecht,

139 S. Ct. 1668 (2019)................................................ 4

Michigan Canners & Freezers Ass’n v.

Agricultural Marketing & Bargaining

Board, 467 U.S. 461 (1984)....................................... 7

Mutual Pharmaceutical Co. v. Bartlett,

570 U.S. 472 (2013) .................................................... 4

Oneok, Inc. v. Learjet, Inc., 575 U.S. 373

(2015) .......................................................................... 4

PLIVA, Inc. v. Mensing, 564 U.S. 604

(2011) .......................................................................... 4

Standing Akimbo, LLC v. United States,

141 S. Ct. 2236 (2021)............................................ 2, 9

Virginia Uranium, Inc. v. Warren, 139 S.

Ct. 1894 (2019) ....................................................... 6, 7

Wright’s Case, 156 N.E.3d 161 (Mass. 2020) ............. 11

STATUTES

21 U.S.C. § 903 ............................................................ 5, 6

iii

OTHER AUTHORITIES

Petitioner’s Appendix, Bierbach v. Digger’s

Polaris, No. 21-998 (U.S. Jan. 11, 2022)............... 13

1

The government acknowledges that there is a 2-2

split on a question of national importance. Yet it

nonetheless recommends denying certiorari—based on

unusually weak arguments that one would never

ordinarily see in a government brief. Why?

Because the government is not a neutral

stakeholder here. For several reasons, the government

has powerful institutional incentives to persuade this

Court to deny certiorari.

First, with respect to the Minnesota Supreme

Court’s holding that complying with the workers’

compensation order would be a federal crime, the

government is in a no-win situation. The government

would never disagree with this reasoning—it would

never advocate for the scope of federal criminal law to

be narrowed. But agreeing with this reasoning would

raise uncomfortable questions about why the

government is refusing to enforce federal criminal law.

The government therefore refuses to take a position on

the Minnesota Supreme Court’s reasoning. But if the

Court granted certiorari, the government could not

evade this issue. The best way for the government to

avoid this quandary is to keep this case out of the

Supreme Court.

Second, this case threatens to expose the

incoherence of the Executive Branch’s policy towards

marijuana. The government argues that the workers’

compensation order is preempted because it “stands as

an obstacle to the accomplishment and execution of the

full purposes and objectives of Congress.” Gov’t Br. 10

(quotation marks omitted).

This contention is

disconnected from reality.

It is the federal

2

government’s policy of non-enforcement, not the statelaw workers’ compensation orders, that poses an

obstacle to the accomplishment of Congress’s

objectives. Minnesota and most other states allow and

regulate medical marijuana. Numerous states allow

and regulate recreational marijuana. As a result,

cultivation, transportation, and retail sales of both

medical and recreational marijuana occur, out in the

open, at a mass scale, nationwide.

The federal

government lets this happen. The notion that these

workers’ compensation orders somehow make a dent in

the federal government’s effort to combat marijuana

cannot be taken seriously. The government knows this,

which is why it so badly wants certiorari to be denied.

The government does not want to face questions about

why it may invoke the Controlled Substances Act as a

basis to impede state law while it fails to enforce the

Controlled Substances Act.

Third, this case raises the risk that the Court may

clip the wings of the government’s Commerce Clause

authority. Justice Thomas’s concurrence in Standing

Akimbo, LLC v. United States, 141 S. Ct. 2236 (2021)

(Thomas, J., respecting denial of certiorari), looms

large. For the reasons explained by Justice Thomas, it

is far from clear that the federal government has the

constitutional authority to intrude on state workers’

compensation systems when the government is

refusing to enforce medical marijuana law. Id. at 2238.

It is easy to imagine the Court applying constitutional

avoidance principles to reject the government’s implied

preemption theory—with reasoning that might hinder

the government’s positions in favor of limitless federal

3

authority.

It is for these reasons that the government asserts

objections to certiorari that are remarkably weak, such

as that the 2-2 split is somehow not entrenched enough

or that the Senate might overcome a filibuster and

legalize marijuana over the Executive Branch’s

opposition. The Court should not be fooled. This case

is certworthy.

The government identifies only one alleged vehicle

problem—the existence of a dispute over state law.

But that vehicle problem affects only Bierbach, not

Musta. The Court should therefore grant Musta and

hold Bierbach.

ARGUMENT

I.

The government’s implied preemption theory

is meritless.

The Minnesota Supreme Court concluded that the

workers’ compensation order was preempted because it

would force Respondents to commit the federal crime

of aiding and abetting marijuana possession. This

reasoning puts the government into a difficult situation.

The government cannot bring itself to disagree with

this reasoning, given its interest in ensuring that the

scope of aiding-and-abetting liability is as broad as

possible. But the government is well aware that this

Court is unlikely to accept the Minnesota Supreme

Court’s remarkably broad assertion of federal criminal

law. And if the government agrees with this reasoning,

it will face an awkward question: why is the Executive

Branch systematically refusing to prosecute these

4

alleged federal crimes in the states where they openly

occur?

So the government simply refuses to take a position

on this issue—and to justify this refusal, it resorts to a

very strange argument. The government faults the

Minnesota Supreme Court for having analyzed whether

compliance with the workers’ compensation order

would violate federal law, because the government has

not disclosed its subjective intent to prosecute

Respondents or “indicated” what “allegations,

evidence, and inferences” it might rely upon. Gov’t Br.

17.

Preemption does not work this way. It is hornbook

law that courts analyze preemption by assessing

whether it is “impossible for a private party to comply

with both state and federal requirements.” Merck

Sharpe & Dohme Corp. v. Albrecht, 139 S. Ct. 1668,

1672 (2019) (quotation marks omitted); Mutual Pharm.

Co. v. Bartlett, 570 U.S. 472, 480 (2013) (same); PLIVA,

Inc. v. Mensing, 564 U.S. 604, 618 (2011) (same). Of

course, some of this Court’s cases have analyzed

implied obstacle preemption—but even in those cases,

the Court makes clear that courts should consider

whether “compliance with both state and federal law is

impossible.” Oneok, Inc. v. Learjet, Inc., 575 U.S. 373,

377 (2015) (quotation marks omitted); see Arizona v.

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

never suggested that it is necessary, or even helpful, to

await a federal enforcement action before analyzing

impossibility preemption.

It therefore makes perfect sense that the Minnesota

Supreme Court analyzed whether compliance with

5

state law would violate federal law. It was doing

exactly what this Court has repeatedly told it to do.

The government’s critique of the Minnesota Supreme

Court’s decision to reach this issue is a transparently

pretextual effort to change the subject.

At any rate, the government’s preferred theory—

obstacle preemption—is even weaker than the

Minnesota Supreme Court’s impossibility preemption

theory. Thus far, 37 judges--26 state supreme court

justices (Pet. 23), and 11 intermediate appellate court

judges (Pet. 22), have considered the question

presented. Zero have endorsed the government’s

obstacle preemption argument. For good reason: it is

meritless.

Under the Controlled Substances Act, state law is

not preempted unless there is “a positive conflict”

between federal and state law “so that the two cannot

consistently stand together.” 21 U.S.C. § 903. The

government claims that this provision operates as a

one-way ratchet that preserves stricter state drug

laws. But the government claims that any time a state

law might, even indirectly, make it easier to obtain

controlled substances, courts can ignore the text of

§ 903 and apply standard obstacle preemption

principles. Gov’t Br. 12-13. Aside from the unhelpful

adverb “naturally,” the government offers no textual

justification for this gerrymandered approach to

preemption.

Applied according to its terms, 21 U.S.C. § 903 does

not bar the workers’ compensation order. There is no

“positive conflict,” id., between federal law and the

state workers’ compensation order. Federal law simply

6

does not regulate employee reimbursement of the cost

of medical marijuana, and states can make their own

policy decisions. If states want to criminalize such

reimbursement, they can. If states want to permit such

reimbursement, but leave it optional, they can. And if

states want to mandate such reimbursement as part of

their workers’ compensation systems, they can. Each

of these policies can “consistently stand together,” id.,

with the government’s policy of nonregulation.

The government complains that Minnesota’s scheme

will “undermine congressional determinations” by

indirectly facilitating marijuana consumption. Gov’t

Br. 10. To be clear, Minnesota’s workers’ compensation

system does not facilitate access to marijuana—injured

employees can obtain it with or without workers’

compensation coverage. Instead, Minnesota’s scheme

reimburses employees for the out-of-pocket cost of

medical marijuana, thus giving them a little extra

money to spend on other goods and services. This

outcome, according to the government, would conflict

with the Controlled Substances Act’s general purpose

of stamping out marijuana.

This theory conflicts with fundamental principles of

statutory interpretation and separation of powers. The

Supremacy Clause cannot be “deployed here to elevate

abstract and unenacted legislative desires above state

law; only federal laws ‘made in pursuance of’ the

Constitution, through its prescribed processes of

bicameralism and presentment, are entitled to

preemptive effect.” Virginia Uranium, Inc. v. Warren,

139 S. Ct. 1894, 1907 (2017) (opinion announcing

judgment of Court by Gorsuch, J., joined by Thomas

7

and Kavanaugh, JJ.). “[P]iling inference upon inference

about hidden legislative wishes … risk[s] displacing the

legislative compromises actually reflected in the

statutory text—compromises that sometimes may

seem irrational to an outsider coming to the statute

cold, but whose genius lies in having won the broad

support our Constitution demands of any new law.” Id.

at 1908.

“In disregarding these legislative

compromises, we may only wind up displacing perfectly

legitimate state laws on the strength of ‘purposes’ that

only we can see, that may seem perfectly logical to us,

but that lack the democratic provenance the

Constitution demands before a federal law may be

declared supreme.” Id. The Court should be especially

reluctant to reach beyond the statutory text when such

a reading would “restrict the States’ sovereign capacity

to regulate in areas of traditional state concern.” CTS

Corp. v. Waldburger, 573 U.S. 1, 12 (2014) (internal

quotation marks omitted). The Court should not

expand the scope of the Controlled Substances Act to

regulate

insurance

coverage

and

employee

reimbursement—topics on which it is silent.

The government (Gov’t Br. 12) cites Michigan

Canners & Freezers Ass’n v. Agricultural Marketing &

Bargaining Board, 467 U.S. 461 (1984). In that case,

the Court held that the state statute “empowers

producers’ associations to do precisely what the federal

Act forbids them to do.” Id. at 477-78. This case is the

exact opposite: the state statute acts in an area where

federal law is silent.

Moreover, the workers’ compensation scheme poses

no threat to federal law enforcement interests.

8

Petitioner consumes marijuana that is prescribed by a

physician, in compliance with state law. Permitting

reimbursement would not undermine the “main

objectives of the CSA”: “to conquer drug abuse” and

“prevent the diversion of drugs from legitimate to illicit

channels.” Gonzales v. Raich, 545 U.S. 1, 12-13 (2005).

It is notable that all of Minnesota’s activities—and

all of Petitioner’s activities—occur out in the open.

Minnesota openly authorizes in-state facilities to grow

the marijuana.

It openly approved Petitioner’s

application to receive the marijuana. Petitioner’s

doctor openly prescribed the marijuana. Petitioner is

making no secret of her marijuana consumption. The

Justice Department has never attempted to enforce

federal law with respect to any of these activities. Why

should it be taken seriously when it now asserts that

reimbursing Petitioner would undermine federal law?

And it is not just Minnesota’s activities. Medical

marijuana is prevalent nationwide. And in many

states, so is recreational marijuana. In states from

California to Massachusetts, any adult who wants

marijuana can go into a store and buy it. In this

environment, saying that workers’ compensation

reimbursement is an “obstacle” to the federal purpose

of ensuring a marijuana-free world is like saying a

pothole is an “obstacle” to driving a car across the

Atlantic Ocean.

Moreover, in the context of medical marijuana,

there is more to federal law than the Controlled

Substances Act. As Justice Thomas has observed,

Congress has enacted a “half-in, half-out regime that

simultaneously tolerates and forbids local use of

9

marijuana.” Standing Akimbo, 141 S. Ct. at 2236-37

(Thomas, J., respecting denial of certiorari). While

marijuana remains illegal under the Controlled

Substances Act, Congress has also banned the

Executive Branch from preventing states from

implementing their own laws that authorize medical

marijuana use. Pet. 3-4.

The government insists that the appropriations

rider does not literally speak to the federal preemption

question here. Gov’t Br. 14-15. This is an ironic

argument coming from the government, which

unapologetically relies on implied preemption. Gov’t

Br. 15. The point is that federal marijuana law contains

a series of compromises in which medical marijuana

technically remains illegal, but states are left alone.

The Court should not overturn that compromise by

using implied preemption to add implied prohibitions to

the Controlled Substances Act that do not appear in its

text.

Constitutional avoidance also weighs against a

finding of implied preemption. As Justice Thomas has

observed, “the Federal Government’s current approach

to marijuana bears little resemblance to the watertight

nationwide prohibition that a closely divided Court

found necessary to justify the Government’s blanket

prohibition in Raich.” Standing Akimbo, 141 S. Ct. at

2238 (Thomas, J., respecting denial of certiorari). Even

though the Executive Branch refuses to enforce federal

marijuana law, the Executive Branch still insists that

Minnesota should be banned from implementing its

workers’ compensation program. It is doubtful at best

whether Congress’s power stretches that far. Rather

10

than setting up a constitutional clash, the Court should

reject the government’s boundless view of implied

preemption and hold that the Controlled Substances

Act does not interfere with state workers’

compensation law.

II.

This case warrants Supreme Court review.

The government is well aware that this case poses a

risk to its extravagant claims of federal authority. So it

launches a series of objections to certiorari, one weaker

than the next.

1. The government asserts that the split is “narrow”

and “recent.” Gov’t Br. 17. A 2-2 split among state

supreme courts, with 26 judges weighing in, is not

“narrow.” Moreover, the relative recency of the split

demonstrates the contemporary importance of the

issue—which weighs in favor of review, not against it.

It is notable that, literally 24 hours after it filed its

invitation brief in this case, the government filed a brief

acquiescing to certiorari in Bittner v. United States, No.

21-1195. Bittner involves a 1-1 split on a narrow

criminal issue in which both conflicting decisions were

released in 2021. If Bittner is certworthy, then this

case—presenting a broader and longer-lasting split on a

more important issue—is also certworthy.

2. The government complains that insufficient

judicial attention has been paid to its obstacle

preemption argument. Gov’t Br. 15-16, 17-18. To be

clear, this argument was made below and the dissent

addressed it in detail, Pet. App. 44a-45a, so there is no

barrier to the Court addressing it in this case.

11

It is true that no judge has ever found the

government’s

obstacle

preemption

argument

persuasive—every judge to consider the question

presented has either rejected preemption, or found

preemption on other grounds. That is because the

government’s argument is unpersuasive. This Court is

fully capable of adjudicating this argument on the

current record. It need not wait, perhaps indefinitely,

for some lower court, somewhere, to agree with the

government’s bad argument.

3. The government says it is “unclear how many

additional States” would require reimbursement of

medical marijuana. Gov’t Br. 17. Despite medical

marijuana being legal in almost every state, the

government cites one decision—Wright’s Case, 156

N.E.3d 161 (Mass. 2020)—finding that state law does

not require such reimbursement. Gov’t Br. 17. But as

the petition explained, the reasoning in Wright’s Case

hinged on federal preemption concerns. Pet. 23-24.

The risk that state courts will distort state law based

on mistaken preemption concerns is a reason to grant

review, not to deny it. Id. Moreover, appellate courts

or workers’ compensation tribunals in New Mexico,

New York, and Connecticut have recently rejected

federal preemption and ordered reimbursement,

indicating that this issue will continue to recur in other

states. Pet. 22.

4. The government notes that there are many

difficult issues in the area of marijuana law. Gov’t Br.

18. Indeed there are. It is this Court’s function to

resolve difficult issues.

5. The government suggests that perhaps Congress

12

will change the law. Gov’t Br. 18. It is true that the

House has voted to legalize marijuana, but there is no

realistic possibility that the Senate will overcome a

filibuster anytime soon. Moreover, the Executive

Branch regularly declines to reschedule or decontrol

marijuana, as the government’s brief admits. Gov’t Br.

5. The government does not suggest there is any

regulatory change on the horizon. So the government’s

position boils down to this: the Court should deny

certiorari because maybe, someday, the Senate will

overcome a filibuster to override the Executive

Branch’s own refusal to reschedule marijuana. This is

not a persuasive argument against certiorari.

III.

Musta is the better vehicle.

Petitioner’s reply brief explained why Musta is a

better vehicle than Bierbach. Pet. Reply 11. The

government’s brief confirms that Musta is the better

vehicle.

The government does not endorse any the Musta

respondents’ meritless vehicle objections. It identifies

only one vehicle issue, which affects Bierbach, not

Musta.

According to the government, the Court should

deny review because of the “unusual context,” in which

the “employers … disputed any state-law obligation to

reimburse past or future marijuana purchases.” Gov’t

Br. 16.

It is true that in Bierbach, the employer vigorously

disputed its state-law obligation to reimburse

marijuana purchases. The Minnesota Supreme Court

declined to resolve that state-law dispute.

See

13

Bierbach Pet. App. 3a.

In Musta, however, as the government correctly

acknowledges, “Mendota Heights did not dispute that

Musta’s use of marijuana complied with [Minnesota’s]

Cannabis Act and was reasonable, medically necessary,

and causally related to her work injury.” Gov’t Br. 7;

see Musta Pet. App. 5a, 49a. Indeed, “the sole issue”

raised by Respondents was federal preemption. Pet.

App. 5a.

As the Musta reply brief explained, this feature of

the case, among others, makes it a stronger vehicle

than Bierbach. Pet. Reply 11. The Court should

therefore grant certiorari in Musta and hold Bierbach.

CONCLUSION

The petition should be granted.

Respectfully submitted,

THOMAS D. MOTTAZ

CHERI M. SISK

MOTTAZ & SISK INJURY LAW

3340 Northdale Blvd. NW, #140

Coon Rapids, MN 55448

(763) 421-8226

tmottaz@mottazlaw.com

csisk@mottazlaw.com

ADAM G. UNIKOWSKY

Counsel of Record

JENNER & BLOCK LLP

1099 New York Ave., NW

Suite 900

Washington, DC 20001

(202) 639-6000

aunikowsky@jenner.com