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Bourgoin v. Twin Rivers Paper Company, LLC

Supreme Court of Maine

June 14, 2018

GAETAN H. BOURGOIN
v.
TWIN RIVERS PAPER COMPANY, LLC, et al.

          Argued: September 13, 2017

          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

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

          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 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.

         [¶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 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 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 "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 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. §§ 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. § 8Ol(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 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, 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 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 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 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]

         [¶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 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." M§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 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-Pheto, 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); TerBeek v. City of Wyoming, 846 N.W.2d 531, 537-38 (Mich. 2014); 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 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 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 ...


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