Vincent Hager v. M & K Construction (084045) (Statewide)

SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.
Vincent Hager v. M&K Construction (A-64-19) (084045)
Argued December 1, 2020 -- Decided April 13, 2021
SOLOMON, J., writing for the Court.
In this appeal, the Court considers the challenges brought by defendant M&K
Construction (M&K) with regard to a workers’ compensation court’s order (the Order)
that M&K reimburse plaintiff Vincent Hager for the ongoing costs of the medical
marijuana he was prescribed after sustaining a work-related injury while employed by
M&K. Specifically, M&K contends that New Jersey’s Jake Honig Compassionate Use
Medical Cannabis Act (Compassionate Use Act or the Act) is preempted as applied to the
Order by the federal Controlled Substances Act (CSA). Compliance with the Order,
M&K claims, would subject it to potential federal criminal liability for aiding-and-
abetting or conspiracy. M&K also asserts that medical marijuana is not reimbursable as
reasonable or necessary treatment under the New Jersey Workers’ Compensation Act
(WCA). Finally, M&K argues that it fits within an exception to the Compassionate Use
Act and is therefore not required to reimburse Hager for his marijuana costs.
Hager suffered a back injury while working for M&K in 2001. He underwent
surgery, but his pain persisted and he continued to take prescribed opioid medication. In
April 2016, Hager began treating with a hospice and palliative care physician, who
enrolled Hager in New Jersey’s medical marijuana program both as an alternative pain
treatment and as a means to wean him off of opioids. Hager’s marijuana prescription cost
him more than six hundred dollars each month.
At a worker’s compensation trial, Hager testified personally, and both he and
M&K presented testimony by medical experts. Identifying medical marijuana and
opioids as the only two choices for pain management, the court concluded that
“marijuana is the clearly indicated option” and ordered M&K to reimburse the costs of
Hager’s medical marijuana and reasonably related expenses. The compensation court
rejected M&K’s claim that, like a private health insurer or government medical benefit
program, M&K could not be required to reimburse the cost of medical marijuana.
The Appellate Division affirmed, 462 N.J. Super. 146, 153 (App. Div. 2020), and
the Court granted M&K’s petition for certification, 241 N.J. 484 (2020).
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HELD: M&K does not fit within the Compassionate Use Act’s limited reimbursement
exception, and Hager presented sufficient credible evidence to the compensation court to
establish that the prescribed medical marijuana represents, as to him, reasonable and
necessary treatment under the WCA. Finally, the Court interprets Congress’s
appropriations actions of recent years as suspending application of the CSA to conduct
that complies with the Compassionate Use Act. As applied to the Order, the Court thus
finds that the Act is not preempted and that M&K does not face a credible threat of
federal criminal aiding-and-abetting or conspiracy liability. M&K is ordered to
reimburse costs for, and reasonably related to, Hager’s prescribed medical marijuana.
1. The Court first considers whether M&K is exempt from reimbursing Hager for his
medical marijuana under N.J.S.A. 34:6I-14. The Compassionate Use Act, N.J.S.A.
24:6I-1 to -30, was enacted by the New Jersey Legislature in 2010 in recognition of the
beneficial uses of marijuana and to protect authorized individuals from criminal and civil
penalties. Of relevance to the present matter, the Act provides that reimbursement for
medical marijuana costs is not required of “a government medical assistance program or
private health insurer.” N.J.S.A. 24:6I-14 (emphasis added). (pp. 13-15)
2. Based that plain language, the Court agrees with the compensation court’s
determination, affirmed by the Appellate Division, that N.J.S.A. 24:6I-14 does not apply
to M&K. The Court reads “or” as limiting the applicability of the exception to only the
two kinds of entities named, in accordance with general principles of statutory
interpretation and the Act’s recognition of the potential health benefits of medical
marijuana. See N.J.S.A. 24:6I-2(e). That reading, further, is supported by the definition
of “Health insurance” in the Life and Health Insurance Code, which unambiguously
states “[h]ealth insurance does not include workmen’s compensation coverages.”
N.J.S.A. 17B:17-4. In the Court’s view, if the Legislature sought to depart from that
general definition and treat workers’ compensation and private health coverage in the
same manner under the Compassionate Use Act, it could have expressly included
workers’ compensation insurance in its exhaustive list or broadened the exception more
generally, as other states have explicitly done. The Court concludes that the Legislature
clearly did not intend for workers’ compensation insurers to be treated as private health
insurers or government medical assistance programs under the Compassionate Use Act.
M&K is therefore not exempt from its reimbursement obligation. (pp. 15-18)
3. The Court next considers M&K’s argument that medical marijuana is not a
“reasonable and necessary treatment” for which the WCA provides coverage. The Court
reviews the legislative history of the WCA, which requires employers to provide “such
medical, surgical and other treatment . . . as shall be necessary to cure and relieve the
worker of the effects of the injury” incurred in the course of employment, and specifies
that all fees for the “treatment shall be reasonable.” N.J.S.A. 34:15-15. Under
interpretive case law, it must be shown that the chosen treatment is “reasonable” and
“necessary” to cure or relieve the injury of the worker. A mere showing that the injured
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worker would benefit from the treatment is not enough. Nevertheless, palliative care may
be properly authorized under the WCA, and workers who are permanently disabled and
beyond hope of being cured are still entitled to continued treatment and services.
Competent medical testimony that a particular treatment or service will reduce symptoms
or restore function is sufficient to satisfy the requirement of reasonable and necessary
care. (pp. 18-20)
4. Like the compensation court and the Appellate Division, the Court concludes that
medical marijuana may be found, subject to competent medical testimony, to constitute
reasonable and necessary care under New Jersey’s workers’ compensation scheme. The
Court reviews Squeo v. Comfort Control Corp., 99 N.J. 588 (1985), which instructs its
analysis here. In this appeal, the doctors who testified on behalf of Hager convinced the
compensation court that Hager remains in chronic pain and that ongoing treatment is
necessary. Identifying medical marijuana and opioids as the two treatment options
available, the court concluded, after thoughtful consideration of the medical testimony
discussing the risks and benefits of each, that marijuana was “the clearly indicated
option.” Reimbursement payments for the cost of Hager’s prescribed medical marijuana
-- the treatment ordered here -- may not yet be common, but they are certainly less unique
than the construction of a self-contained apartment, which the Court found appropriate in
Squeo. Indeed, marijuana’s ability to relieve pain has been expressly recognized by the
Legislature in the Compassionate Use Act. N.J.S.A. 24:6I-2(a), -3. Thus, competent
evidence relating to medical marijuana’s ability to restore some of a worker’s function or,
as in Hager’s case, relieve symptoms such as chronic pain and discomfort, is sufficient to
find such a course of treatment appropriate. As in Squeo, the Court recognizes the
potential harm that may be inflicted on Hager by the alternative available treatment; here,
that would mean opioid treatment and a “likely path . . . [of] worsening addiction and
ultimately death.” Sufficient credible evidence in the compensation court record --
medical records and hearing testimony -- supported the Order. (pp. 21-23)
5. The Court next considers whether the federal CSA extinguishes M&K’s obligations
under state law. New Jersey law diverges from federal law not just as to medical
marijuana but as to its recreational use as well, given New Jersey’s recent legalization of
recreational marijuana. Notwithstanding New Jersey’s legalization of the medical and
recreational use of marijuana, the CSA must be considered. The principles of federal
preemption are rooted in the Supremacy Clause of the United States Constitution, U.S.
Const. art. VI, cl. 2, which unambiguously provides that if there is any conflict between
federal and state law, federal law shall prevail. Because the CSA explicitly leaves room
for state law to operate, see 21 U.S.C. § 903, the Court focuses on conflict preemption,
which occurs in two scenarios: where it is impossible for a private party to comply with
both state and federal requirements, and when state law stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress. The
Court explains that preemption is not to be lightly presumed and that deciphering
congressional intent is central to preemption analysis. (pp. 24-29)
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6. Enacted by Congress in 1970, the CSA replaced a network of drug laws with a
comprehensive regime, separating controlled substances into five schedules based on
their accepted medical uses, risk of abuse, and physical and psychological effects.
Marijuana was placed in the strictest schedule -- Schedule I -- at the time of the CSA’s
enactment. Substances on Schedule I must be found to have a high potential for abuse,
no currently accepted use for medical treatment, and a lack of accepted safety measures
for use under medical supervision. 21 U.S.C. § 812(b)(1). Marijuana remains a Schedule
I drug today, despite repeated efforts to petition for its rescheduling. Except as otherwise
authorized, the CSA makes it unlawful to knowingly or intentionally “possess with intent
to manufacture, distribute, or dispense, a controlled substance.” Id. § 841(a)(1). The
CSA also makes unlawful, subject to exceptions, the knowing or intentional possession of
a controlled substance “unless such substance was obtained directly, or pursuant to a
valid prescription or order, from a practitioner, while acting in the course of his
professional practice.” Id. § 844(a). (pp. 30-31)
7. The “valid prescription” language contained in § 844(a) cannot, however, apply to
marijuana because the CSA prevents marijuana from being validly prescribed. On the
enforcement front, guidance from senior personnel in the Department of Justice (DOJ) to
the offices of the United States Attorneys issued over the past decade or so has, at times,
deprioritized -- but not prohibited -- federal prosecution of marijuana activities that are
legal under state law. More importantly, Congress has also deprioritized prosecution for
possession of medical marijuana while leaving the CSA otherwise unchanged. In the
relevant rider to the most recent federal Appropriations Act, Congress prohibited the DOJ
from using allocated funds to prevent states, including New Jersey, from implementing
their medical marijuana laws. Similar language has been included in appropriations
riders dating back to the 2015 federal budget. (pp. 32-35)
8. The tension between Congress’s appropriations riders and the CSA’s classification
and criminalization of marijuana is manifest. Mindful that preemption analysis turns on
legislative intent, the Court reviews case law examining whether and under what
circumstances appropriations acts -- reflecting a shift in intent with respect to earlier
legislation -- are deemed to impliedly suspend or supplant the earlier law. “[A]lthough
repeals by implication are especially disfavored in the appropriations context, Congress
nonetheless may amend substantive law in an appropriations statute, as long as it does so
clearly.” Robertson v. Seattle Audubon Soc’y, 503 U.S. 429, 440 (1992). The Court
observes that the federal decisions it has reviewed mirror the Court’s own reading of
appropriations acts as signifiers of legislative intent to suspend earlier statutory
enactments in City of Camden v. Byrne, 82 N.J. 133 (1980). The Court noted in Byrne,
as did the Ninth Circuit in United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016), the
limited applicability of appropriations laws -- confined to a particular fiscal year -- and
concluded that their effect on the previously enacted statutes was best expressed as
implied suspension as opposed to implied repeal. (pp. 36-41)
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9. Here, the CSA expressly contemplates a role for state law absent a “positive conflict”
with the CSA. See 21 U.S.C. § 903; see also Gonzales v. Oregon, 546 U.S. 243, 251
(2006). The Compassionate Use Act seeks to operate in the space afforded to it by
federal law and federal priorities. Congress has, for seven consecutive fiscal years,
prohibited the DOJ from using funds to interfere with state medical marijuana laws
through appropriations riders. Congress is empowered to amend the CSA via an
appropriations action provided “it does so clearly,” see Robertson, 503 U.S. at 440, and
the most recent appropriations rider, in the Court’s view, “clearly is intended as a
substitute” to the CSA as applied to the Compassionate Use Act, see Miccosukee Tribe of
Indians of Fla. v. U.S. Army Corps of Eng’rs, 619 F.3d 1289, 1299 (11th Cir. 2010).
Therefore, the Court finds that Congress has spoken through the most recent
appropriations rider and gives it the final say. (pp. 41-44)
10. The Court concludes that the CSA, as applied to the Compassionate Use Act and the
Order at issue, is effectively suspended by the most recent appropriations rider for at least
the duration of the federal fiscal year. Because DOJ enforcement of the CSA may not, by
congressional action, interfere with activities compliant with the Compassionate Use Act,
the Court finds that there is no “positive conflict” and that the CSA and the Act may
coexist as applied to the Order. See 21 U.S.C. § 903. Qualified patients may continue to
possess and use medical marijuana, and related compensation orders may be entered
while federal authorities continue to enforce the CSA to the extent Congress permits.
The federal and state acts can thus consistently stand together, and it is possible for M&K
to comply with both. The Compassionate Use Act does not currently present an obstacle
to Congress’s objectives as articulated in the recent appropriations riders, and so the CSA
does not preempt the Compassionate Use Act as applied to the Order. The Court
underscores the “temporal nature” of the issue and its dependence on the future acts of
Congress. See McIntosh, 833 F.3d at 1179. (pp. 44-47)
11. The Court is unpersuaded by M&K’s contention that its compliance with the Order
would subject it to aiding-and-abetting and conspiracy liability under federal law on the
theory that it would be assisting in Hager’s possession of marijuana, contrary to the CSA.
M&K’s payments would not satisfy the specific intent requirement for aiding-and-
abetting liability when the facts so clearly indicate that it will be reimbursing Hager
against its will and at the behest of the Court. Likewise, to the extent that the Order
requiring reimbursement payments creates a conspiracy between Hager and M&K,
M&K’s membership cannot be said to be intentional. Rather, its participation is being
compelled by the courts. (pp. 47-51)
AFFIRMED.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
FERNANDEZ-VINA, and PIERRE-LOUIS join in JUSTICE SOLOMON’S opinion.
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SUPREME COURT OF NEW JERSEY
A-64 September Term 2019
084045
Vincent Hager,
Petitioner-Respondent,
v.
M&K Construction,
Respondent-Appellant.
On certification to the Superior Court,
Appellate Division, whose opinion is reported at
462 N.J. Super. 146 (App. Div. 2020).
Argued Decided
December 1, 2020 April 13, 2021
Matthew Gitterman argued the cause for appellant
(Biancamano & DiStefano, attorneys; James E.
Santomauro, on the brief).
Victor B. Matthews argued the cause for respondent
(Victor B. Matthews, on the brief).
Alan Silber argued the cause for amici curiae National
Organization for the Reform of Marijuana Laws, Garden
State-NORML, Coalition for Medical Marijuana-NJ and
Doctors for Cannabis Regulation (Pashman Stein Walder
Hayden, attorneys; Alan Silber, of counsel and on the
brief, and Dillon J. McGuire, on the brief).
Elizabeth R. Leong submitted a brief on behalf of amicus
curiae of American Property Casualty Insurance
1
Association (Robinson & Cole, attorneys; Elizabeth R.
Leong, on the brief).
JUSTICE SOLOMON delivered the opinion of the Court.
Vincent Hager injured his back in a work-related accident in 2001 while
employed by M&K Construction (M&K). For years thereafter, Hager received
treatment for chronic pain with opioid medication and surgical procedures to
no avail. In 2016, he enrolled in New Jersey’s medical marijuana program
both as a means of pain management and to overcome an opioid addiction.
Thereafter, a workers’ compensation court found that Hager “exhibit[ed]
Permanent Partial Total disability” and ordered M&K to reimburse him for the
ongoing costs of his prescription marijuana (the Order). The Appellate
Division affirmed.
Before us, M&K contends that New Jersey’s Jake Honig Compassionate
Use Medical Cannabis Act (Compassionate Use Act or the Act) is preempted
as applied to the Order by the federal Controlled Substances Act (CSA).
Compliance with the Order, M&K claims, would subject it to potential federal
criminal liability for aiding-and-abetting or conspiracy. M&K also asserts that
medical marijuana is not reimbursable as reasonable or necessary treatment
under the New Jersey Workers’ Compensation Act (WCA). Finally, M&K
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argues that it fits within an exception to the Compassionate Use Act and is
therefore not required to reimburse Hager for his marijuana costs.
We conclude that M&K does not fit within the Compassionate Use Act’s
limited reimbursement exception. We also find that Hager presented sufficient
credible evidence to the compensation court to establish that the prescribed
medical marijuana represents, as to him, reasonable and necessary treatment
under the WCA. Finally, we interpret Congress’s appropriations actions of
recent years as suspending application of the CSA to conduct that complies
with the Compassionate Use Act. As applied to the Order, we thus find that
the Act is not preempted and that M&K does not face a credible threat of
federal criminal aiding-and-abetting or conspiracy liability. We therefore
affirm the judgment of the Appellate Division.
I.
A.
The appellate record reveals the facts and procedural history pertinent to
this appeal, and we begin in August 2001, when Hager was employed as a
laborer for M&K. While working on a residential basement, Hager sought to
retrieve cement in a wheelbarrow he was using. Something “like an
explosion” resulted in the cement truck overpouring cement, “hurl[ing Hager]
into the air” and “smashing [him] and flattening [him] back out like a
3
pancake.” Thereafter, Hager experienced sharp back pain that radiated down
his legs, and he was transferred to light duty. Hager never returned to full duty
before leaving M&K in December 2001 due to his persistent back pain.
An MRI revealed spinal disc herniations and bulging and, in November
2003, Hager underwent a laminectomy and decompression of nerve roots in his
back. He subsequently underwent a two-level lumbar fusion in September
2011, but his pain persisted and Hager continued to take prescribed opioid
medication.1
In April 2016, Hager began treating with Dr. Joseph Liotta, M.D., a
hospice and palliative care physician, who enrolled Hager in New Jersey’s
medical marijuana program both as an alternative pain treatment and as a
means to wean him off of opioids. Initially prescribed one ounce per month,
Hager was later prescribed two ounces per month -- the maximum allowable
prescription -- costing him more than six hundred dollars each month.
B.
The procedural history of this matter is somewhat murky and largely
irrelevant to the issues before us. In sum, Hager petitioned for workers’
compensation benefits in February 2002. M&K denied the claim the following
1
The record shows that since approximately 2006 Hager has received, in addition
to any medical benefits that may have been provided by M&K, Supplemental
Security Income and Medicaid benefits.
4
month, stating that the accident was being investigated. It was not until
November 2016 that M&K stipulated that Hager was in its employ and
suffered a work-related injury. The workers’ compensation trial to determine
the nature and extent of Hager’s work-related injuries, and any unpaid medical
benefits to which he was entitled began in November 2016 and continued over
several scattered days until March 2018.
At trial, Hager presented the expert testimony of Dr. Liotta, who
testified that he had diagnosed Hager with post-laminectomy syndrome
resulting in chronic pain. Hager was also experiencing adverse side effects
from his opioid medication, according to Dr. Liotta, and was “motivated” to
cease its use. Hager stopped using opioids after about a month of treatment
with marijuana. Dr. Liotta noted a “very weak” risk of chemical addiction to
marijuana and fewer serious, and potentially fatal, side effects as compared to
opioids. Also, Hager testified on his own behalf that medical marijuana helped
wean him off opioids, took “the edge off” his pain, and helped with muscle
spasms.
Hager also presented the testimony of orthopedist Dr. Cary Skolnick,
M.D., who testified that Hager required long-term pain management due to his
“chronic lumbar strain, lumbar herniated discs[,] . . . [and] post-laminectomy
syndrome.” Dr. Skolnick attributed Hager’s condition to the August 2001
5
accident and concluded that he was 100% totally and permanently disabled,
65% attributable to his back injury and 35% attributable to the effects of his
medication.
M&K presented the testimony of orthopedic surgeon Dr. Gregory
Gallick, M.D., who concluded that Hager was only 12.5% permanently
disabled and still capable of performing jobs such as driving. Dr. Robert
Brady, D.O., also testified on behalf of M&K and described the potential side
effects of medical marijuana, including cognitive difficulties, hallucinations,
emphysema, chronic obstructive pulmonary disease, and lung cancer. Risks
associated with opioids, according to Dr. Brady, include overdose, death,
tolerance, depression, and sexual dysfunction. Though Dr. Brady opined that
opioids are more physically addictive than marijuana, he represented that the
two are equally psychologically addictive.
Citing medical literature, Dr. Brady testified that he did not prescribe his
patients medical marijuana and added that medical marijuana had not been
proven effective for conditions such as Hager’s. Dr. Brady opined that brief
physical therapy followed by a home-exercise regimen represented Hager’s
“best option” for relief. Dr. Brady did not recommend continued physician
treatment or pain management because “[u]nfortunately, sometimes people
have pain.”
6
C.
At the time of the compensation court’s decision, the parties had already
reached an agreement regarding medical bills, most out-of-pocket medical
expenses, temporary disability benefits, and third-party lien credits -- leaving
the court to determine only the nature and extent of Hager’s permanent
disability and the necessary course of future treatment. The court concluded
that Hager “exhibit[ed] Permanent Partial Total disability totaling 65%,
approximately 50% attributable to his orthopedic condition and 15%
attributable to the effects of the medical marijuana.” The court also found no
support for M&K’s contention that Hager did not require further treatment.
Identifying medical marijuana and opioids as the only two choices for
pain management, the court concluded that “marijuana is the clearly indicated
option” and ordered M&K to reimburse the costs of Hager’s medical marijuana
and reasonably related expenses. The court found the testimony of Dr. Liotta
and Hager to be credible as compared to that of Dr. Brady. Also important to
the compensation court was Hager’s ability to “conquer his addiction” to
opioids. The court concluded that “the best interests of the injured worker
must be a prime consideration under our workers’ compensation scheme. It is
likewise clear that the legislature intended to make available the benefits of
medical marijuana to persons displaying a medical need, despite the federal
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attitude toward the substance.” The compensation court also rejected M&K’s
claim that, like a private health insurer or government medical benefit
program, M&K could not be required to reimburse the cost of medical
marijuana.
The Appellate Division affirmed both the compensation court’s Order
and, in response to Hager’s cross-appeal, the court’s finding that Hager “had a
65% permanent partial total disability.” Hager v. M&K Constr., 462 N.J.
Super. 146, 153, 171-72 (App. Div. 2020). After conducting a thorough
analysis to determine whether the Compassionate Use Act is preempted by the
CSA in the context of the Order, the Appellate Division concluded that the Act
did not require employers to do what the CSA proscribes -- possess,
manufacture, or distribute marijuana. Id. at 162-65. Compliance with both
laws was thus possible, resulting in no positive conflict. Id. at 165. The
Appellate Division also rejected M&K’s contentions that compliance with the
Order created potential aider-and-abettor liability that both preempted the
Compassionate Use Act and placed M&K at risk of federal prosecution for
assisting in Hager’s possession of marijuana. Id. at 165-67. The court
concluded that M&K lacked the requisite intent and active participation to
support an aiding-and-abetting charge, and did not face a credible threat of
federal prosecution. Id. at 166-67.
8
The Appellate Division also rejected M&K’s argument that it should be
treated like a private health insurer under the Compassionate Use Act and be
exempt from reimbursing the cost of Hager’s medical marijuana. Id. at 168.
Finally, citing the testimony of Hager and Drs. Liotta and Skolnick, the court
was satisfied that medical marijuana represents reasonable and necessary
treatment for Hager. Id. at 170.
We granted M&K’s petition for certification. 241 N.J. 484 (2020). We
also granted leave to participate as amici curiae to the American Property
Casualty Insurance Association (APCIA) and to a group of jointly
participating organizations -- the National Organization for the Reform of
Marijuana Laws; Garden State - NORML; the Coalition for Medical Marijuana
- New Jersey; and Doctors for Cannabis Regulation -- which we refer to
collectively here as “Other Amici.”
II.
Before us, M&K reiterates its position that, as applied to the
compensation court’s Order, the Compassionate Use Act is in actual conflict
with the CSA because it compels M&K to do what the CSA prohibits -- assist
in Hager’s possession of marijuana. By reimbursing Hager, M&K argues it
would be risking federal criminal charges for conspiracy and aiding-and-
abetting because it will know that Hager is using the reimbursement to pay for
9
medical marijuana. Although the Appellate Division concluded that one
cannot be liable for aiding-and-abetting a completed crime, M&K notes that
Hager purchases marijuana on a monthly basis and characterizes the offense as
ongoing.
M&K also sees no reason to differentiate between private health insurers
and workers’ compensation insurers; it argues that workers’ compensation
insurers should be afforded similar protection under the Compassionate Use
Act and should not be required to reimburse an employee’s medical marijuana
costs. M&K further contends that medical marijuana is per se an unreasonable
and unnecessary medical treatment because it is illegal under federal law. It
adds that marijuana has not been proven to cure or improve back pain and that,
unlike other medications, the quantity of a given dose of marijuana is at the
discretion of the patient rather than the prescribing physician.
The APCIA reiterates M&K’s general assertions, urging us to focus our
attention on the fact that the Order impermissibly requires what federal law
prohibits and directing our attention to the recent decision of the Maine
Supreme Court in Bourgoin v. Twin Rivers Paper Co., 187 A.3d 10 (Me.
2018), which found in favor of a similarly situated employer. Marijuana use,
in addition to having unproven medical value, is inconsistent with the safety
goals of New Jersey’s workers’ compensation scheme, according to the
10
APCIA, and affirmance here would hamper employer enforcement of drug-
free-workplace policies and efforts to prevent employees from being impaired
on the job.
Hager counters that the Compassionate Use Act and the CSA are not in
direct conflict because M&K can comply with both statutes. M&K is not itself
being asked to engage in conduct violative of the CSA and is not subject to
liability as an aider-and-abettor because it lacks specific intent, according to
Hager. Hager adds that M&K faces no credible threat of federal prosecution
and refers us to the fact that employers and workers’ compensation carriers in
New Mexico have not faced federal prosecution after being required to
reimburse employees’ medical marijuana costs. Citing the remedial purpose of
the WCA and the New Jersey Legislature’s recognition of the medical benefits
of marijuana in alleviating chronic pain, Hager contends that he is entitled to
reimbursement.
Other Amici likewise contend that the CSA and the Compassionate Use
Act are not in conflict because the latter does not interfere with federal
enforcement of the CSA, and does not require an employer to possess,
manufacture, or distribute marijuana in violation of federal law. They describe
M&K’s aiding-and-abetting argument as a “legal impossibility” because the
offense is completed by the time of reimbursement. Stressing that the
11
compensation court’s finding that marijuana is an appropriate treatment for
Hager is supported by the medical records and testimony provided, Other
Amici ask us to affirm.
III.
As we turn to M&K’s challenges to the determinations of the
compensation court, affirmed by the Appellate Division, we are mindful that
our review of workers’ compensation decisions is “limited to whether the
findings made could have been reached on sufficient credible evidence present
in the record.” Hersh v. County of Morris, 217 N.J. 236, 242 (2014) (quoting
Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 164 (2004)). We
acknowledge the compensation court’s expertise and the valuable opportunity
it has had in hearing live testimony, and we thus review its factual and
credibility findings with “substantial deference.” Goulding v. NJ Friendship
House, Inc., 245 N.J. 157, 167 (2021) (quoting Ramos v. M & F Fashions,
Inc., 154 N.J. 583, 594 (1998)). However, we review the court’s legal findings
and construction of statutory provisions de novo. Hersh, 217 N.J. at 243.
The issues presented in this appeal require consideration of New Jersey ’s
Compassionate Use Act and the WCA on their own terms and in relation to
one another, as well as the potential impact of the federal CSA on both state
statutes. We begin by considering M&K’s state-law based claims.
12
IV.
A.
The Compassionate Use Act, N.J.S.A. 24:6I-1 to -30, was enacted by the
New Jersey Legislature in 2010 in recognition of the beneficial uses of
marijuana and to protect authorized individuals from criminal and civil
penalties. Wild v. Carriage Funeral Holdings, Inc., 458 N.J. Super. 416, 427
(App. Div. 2019), aff’d, 241 N.J. 285 (2020). The Act articulates legislative
findings that: (1) “[m]odern medical research has discovered a beneficial use
for cannabis in treating or alleviating the pain or other symptoms associated
with certain medical conditions”; (2) ninety-nine out of every hundred
marijuana arrests are made under state law, providing an opportunity to protect
from arrest many seriously ill individuals in need of marijuana treatment; (3)
though prohibited under federal law, many other states have legalized medical
marijuana; and (4) states are not required to enforce federal law, meaning that
the Act does not place New Jersey in violation of federal law. N.J.S.A. 24:6I-
2(a) to (d).
Further, the Legislature, through the Act, seeks to make a “distinction
. . . between medical and non-medical uses” of marijuana -- a distinction that it
stresses “[c]ompassion dictates.” Id. at -2(e). Accordingly, the Act has “the
purpose . . . to protect from arrest, prosecution, . . . and criminal and other
13
penalties, those patients who use cannabis to alleviate suffering from
qualifying medical conditions, as well as their health care practitioners,
designated caregivers, institutional caregivers, and those who are authorized to
produce cannabis for medical purposes.” Ibid.; see also Wild, 458 N.J. Super.
at 427; State v. Myers, 442 N.J. Super. 287, 298 (App. Div. 2015).
“Qualifying medical condition[s]” include “chronic pain.” N.J.S.A. 24:6I-3.
The Compassionate Use Act, perhaps most notably, applies the
provisions of N.J.S.A. 2C:35-18 -- which establishes an affirmative defense to
criminal liability under state law -- to patients, practitioners, caregivers, and
others operating in accordance with the Act. N.J.S.A. 24:6I-6(a); see also
Wild, 458 N.J. Super. at 427; Myers, 442 N.J. Super. at 300. Similarly,
patients, practitioners, caregivers, and others abiding by the Act cannot be
subject to any civil or administrative penalties or loss of any right or privilege.
N.J.S.A. 24:6I-6(b).
In the employment context, the Compassionate Use Act does not alter
preexisting employment rights and obligations. See Wild, 458 N.J. Super. at
428 (discussing the Act as it relates to the New Jersey Law Against
Discrimination). The Act prohibits an adverse employment action against a
registered patient “based solely on the employee’s status as a registrant.”
N.J.S.A. 24:6I-6.1(a). However, the Act does not “require an employer to
14
commit any act that would cause the employer to be in violation of federal
law, that would result in a loss of a licensing-related benefit pursuant to
federal law, or that would result in the loss of a federal contract or federal
funding.” Id. at -6.1(c)(2).
Of relevance to the present matter, the Act provides that reimbursement
for medical marijuana costs is not required of “a government medical
assistance program or private health insurer.” N.J.S.A. 24:6I-14. M&K argues
that it is exempt from reimbursing Hager for his medical marijuana under that
provision.
B.
Based on the plain language of the statute, we agree with the
compensation court’s determination, affirmed by the Appellate Division, that
N.J.S.A. 24:6I-14 does not apply to M&K.
A provision of the statute, entitled “Construction of act,” specifies in
relevant part that “[n]othing in [the Compassionate Use Act] shall be construed
to require a government medical assistance program or private health insurer
to reimburse a person for costs associated with the medical use of cannabis.”
Ibid. (emphasis added). We read “or” as limiting the applicability of the
exception to only those two kinds of entities. See Guttenberg Sav. & Loan
Ass’n v. Rivera, 85 N.J. 617, 623 (1981) (“The use of the words ‘lessee or
15
tenant’ indicates the Legislature had in mind those occupants of residential
dwelling units who had a certain correlative relationship with someone else ,
namely, a landlord or lessor. Otherwise the Legislature would have used a
broader terminology.”). It is “[a] general principle of statutory interpretation .
. . that ‘exceptions in a legislative enactment are to be strictly but reasonably
construed, consistent with the manifest reason and purpose of the law.’” Prado
v. State, 186 N.J. 413, 426 (2006) (quoting Serv. Armament Co. v. Hyland, 70
N.J. 550, 558-59 (1976)). Here, reading “or” as a limitation to the coverage
exemption advances the Act’s overarching and compassion-driven recognition
of the potential health benefits of medical marijuana. See N.J.S.A. 24:6I-2(e).
The reading, further, is supported by the definition of “Health insurance”
in the Life and Health Insurance Code, which unambiguously states “[h]ealth
insurance does not include workmen’s compensation coverages.” N.J.S.A.
17B:17-4. If the Legislature sought to depart from that general definition and
treat workers’ compensation and private health coverage in the same manner
under the Compassionate Use Act, it could have expressly included workers’
compensation insurance in its exhaustive list or broadened the exception more
generally, as other states have explicitly done. See Fla. Stat. § 381.986(15)(f)
(“Marijuana . . . is not reimbursable . . . .”); 410 Ill. Comp. Stat. 130/40(d)
(“Nothing in this Act may be construed to require a government medical
16
assistance program, employer, property and casualty insurer, or private health
insurer to reimburse a person for costs associated with the medical use of
cannabis.”); Mich. Comp. Laws § 418.315a (“[A]n employer is not required to
reimburse or cause to be reimbursed charges for medical marihuana
treatment.”); Mont. Code Ann. § 39-71-407(6)(c) (“Nothing in this chapter
may be construed to require an insurer to reimburse any person for costs
associated with the use of marijuana . . . .”); Okla. Stat. tit. 63 § 427.8(I)
(“Nothing in this act . . . shall . . . [r]equire an employer, a government
medical assistance program, private health insurer, worker’s compensation
carrier or self-insured employer providing worker’s compensation benefits to
reimburse a person for costs associated with the use of medical marijuana[.] ”);
R.I. Gen. Laws § 21-28.6-7(b)(1) (excepting from the requirement to
reimburse medical marijuana costs a “workers’ compensation insurer, workers’
compensation group self-insurer, or employer self-insured for workers’
compensation”); Utah Code Ann. § 26-61a-112 (“Nothing in this chapter
requires an insurer, a third-party administrator, or an employer to pay or
reimburse for cannabis, a cannabis product, or a medical cannabis device.”).
We find that the Legislature’s decision not to either list workers’
compensation carriers or generally broaden the exclusion -- while at the same
time including “chronic pain” as a qualifying medical condition under the Act,
17
N.J.S.A. 24:6I-3, when the WCA covers palliative care, as discussed in the
next section of this opinion -- places our conclusion here within the clear
contemplation of the Legislature.
In sum, we conclude that the Legislature clearly did not intend for
workers’ compensation insurers to be treated as private health insurers or
government medical assistance programs under the Compassionate Use Act.
M&K is therefore not exempt from its reimbursement obligation.
V.
A.
We next consider M&K’s argument that medical marijuana is not a
“reasonable and necessary treatment” for which the WCA provides coverage ,
and we begin with the WCA’s legislative history and purpose. The WCA,
N.J.S.A. 34:15-1 to -146, was enacted in 1911 to compensate workers injured
in industrial accidents. Richard C. Henke, Workers’ Compensation in New
Jersey: Toward a Removal of Workers from the Sacrificial Altar of Production
Quotas, 56 Rutgers L. Rev. 789, 796 (2004). The scope of the WCA thereafter
expanded over the decades, id. at 796-97, and benefits payable to injured
workers increased.
When it was first enacted, the WCA provided for “reasonable medical
and hospital services and medicines” up to one hundred dollars during the two
18
weeks following an injury. L. 1911, c. 95, § 14. Today, the WCA requires
employers to provide “such medical, surgical and other treatment . . . as shall
be necessary to cure and relieve the worker of the effects of the injury,”
N.J.S.A. 34:15-15, incurred “in the course of employment,” Univ. of Mass.
Mem’l Med. Ctr., Inc. v. Christodoulou, 180 N.J. 334, 344 (2004). The statute
specifies that “[a]ll fees and other charges for such physicians’ and surgeons’
treatment and hospital treatment shall be reasonable.” N.J.S.A. 34:15-15. If
an employer refuses or neglects to provide requested necessary treatment or
services, the injured worker “may secure such treatment and services as may
be necessary . . . and the employer shall be liable to pay therefor.” Ibid.Additionally, the WCA, as enacted and amended, is remedial in nature
and is to be liberally construed. See, e.g., Squeo v. Comfort Control Corp., 99
N.J. 588, 604 (1985) (“[T]he construction of an apartment addition may be
within the ambit of N.J.S.A. 34:15-15.”); Howard v. Harwood’s Rest. Co., 25
N.J. 72, 88, 94 (1957) (finding that continued nursing-home care was
“necessary to cure and relieve” the worker’s injuries). Failure to comply with
a compensation court’s order to pay benefits may lead to imposition of costs,
fines, and other penalties. N.J.S.A. 34:15-28.2.
Still, the treatment or services sought by the injured worker “must be
shown by competent medical testimony to be such as are reasonable and
19
necessary for the particular” worker. Howard, 25 N.J. at 93. Such evidence is
the “touchstone” of determining what is reasonable and necessary. Squeo, 99
N.J. at 606; accord Martin v. Newark Pub. Schs., 461 N.J. Super. 330, 339
(App. Div. 2019) (finding that “there was sufficient, credible evidence in the
record to support the compensation judge’s determination that further
treatment with opioid medication would not cure or relieve” the worker’s
condition). The injured worker’s desires or beliefs as to what treatment or
service will be most beneficial is not determinative. Squeo, 99 N.J. at 606.
Further, “it must be shown that [the chosen] treatment is ‘reasonable’ and
‘necessary’ to cure or relieve the injury of the worker. A mere showing that
the injured worker would benefit from the . . . treatment is not enough.” Raso
v. Ross Steel Erectors, Inc., 319 N.J. Super. 373, 383 (App. Div. 1999).
Nevertheless, palliative care may be properly authorized under the
WCA, and workers who are permanently disabled and beyond hope of being
cured are still entitled to continued treatment and services. Howard, 25 N.J. at
88, 93-94; Hanrahan v. Township of Sparta, 284 N.J. Super. 327, 333 (App.
Div. 1995). Competent medical testimony that a particular treatment or
service will reduce symptoms or restore function is sufficient to satisfy the
requirement of reasonable and necessary care. Hanrahan, 284 N.J. Super. at
336.
20
B.
Like the compensation court and the Appellate Division, we too
conclude that medical marijuana may be found, subject to competent medical
testimony, to constitute reasonable and necessary care under New Jersey’s
workers’ compensation scheme. See Howard, 25 N.J. at 93-94. Our decision
in Squeo instructs our analysis here.
The petitioner in Squeo lost the use of his arms and legs at age twenty-
four following a work-related fall; he argued that a self-contained apartment
attached to his parents’ home could constitute “other treatment” or “other
appliance” under N.J.S.A. 34:15-15. 99 N.J. at 590-91. We affirmed the
compensation court’s order in favor of the petitioner, finding “that under
certain unique circumstances, when there is sufficient and competent medical
evidence to establish that the requested ‘other treatment’ or ‘appliance’ is
reasonable and necessary to relieve the injured worker . . . the construction of
an apartment addition may be within the ambit of N.J.S.A. 34:15-15.” Id. at
604, 607. In arriving at that conclusion, we looked beyond the petitioner’s
physical condition and also considered the psychological harm resulting from
his work-related injuries; that harm was “aggravated” by the then-offered
treatment -- placement in a nursing home -- which resulted in multiple suicide
attempts. Id. at 605.
21
In this appeal, Drs. Skolnick and Liotta persuaded the compensation
court that Hager remains in chronic pain and that ongoing treatment is
necessary. Identifying medical marijuana and opioids as the two treatment
options available, the court concluded, after thoughtful consideration of the
medical testimony discussing the risks and benefits of each, that marijuana was
“the clearly indicated option.” Persuasive to the court was marijuana’s ability
to both provide pain relief and help Hager “conquer his addiction” to opioids.
Reimbursement payments for the cost of Hager’s prescribed medical
marijuana -- the treatment ordered here -- may not yet be common, but they are
certainly less unique than the construction we found appropriate in Squeo.
Indeed, marijuana’s ability to relieve pain has been expressly recognized by
the Legislature in the Compassionate Use Act. N.J.S.A. 24:6I-2(a), -3. Thus,
competent evidence relating to medical marijuana’s ability to restore some of a
worker’s function or, as in Hager’s case, relieve symptoms such as chronic
pain and discomfort, is sufficient to find such a course of treatment
appropriate. See Hanrahan, 284 N.J. Super. at 336.
As in Squeo, we recognize the potential harm that may be inflicted on
Hager by the alternative available treatment. The compensation court noted
that the record reflected that treatment with opioids had placed Hager on a
“likely path . . . [of] worsening addiction and ultimately death.” It favored the
22
testimony of Hager’s experts over that of M&K’s, which was within its
discretion to do, that marijuana was comparatively the “appropriate” option to
address both Hager’s chronic pain and the adverse effects of years of opioid
use. Rather than “throw [Hager] back to the trash heap,” the court entered its
Order to reimburse Hager’s marijuana use, both to manage his pain and
support his efforts to overcome his addiction.
We agree with the compensation court and Appellate Division that
exempting workers’ compensation insurance carriers from responsibility for
workers’ medical marijuana costs would be antithetical to the Legislature’s
express findings in the Compassionate Use Act and the traditional broad,
liberal application of New Jersey’s workers’ compensation scheme. Sufficient
credible evidence in the compensation court record -- medical records and
hearing testimony -- supported the Order. We will not disturb it. Goulding,
245 N.J. at 167.
Having found that M&K is obliged to reimburse Hager under the
Compassionate Use Act and the WCA, we next consider whether the federal
CSA -- which classifies marijuana among the most rigorously controlled
substances and criminalizes the possession and distribution of marijuana, as
discussed in Section VI.C. below -- extinguishes M&K’s obligations under
state law.
23
VI.
A.
We begin our discussion of the intersection of federal and state law here
with the recognition that New Jersey law diverges from federal law not just as
to medical marijuana but as to its recreational use as well. Indeed, at present,
New Jersey’s marijuana laws are undergoing a tectonic shift. In November
2020, New Jerseyans voted to legalize recreational marijuana via constitutional
amendment by a two-to-one margin. Troy Closson, Marijuana Is Legal in New
Jersey, but Sales Are Months Away, N.Y. Times (Feb. 22, 2021),
https://www.nytimes.com/2021/02/22/nyregion/new-jersey-marijuana-
legalization.html. As of January 1, 2021, the “growth, cultivation, processing,
manufacturing, preparing, packaging, transferring, and retail purchasing and
consumption of cannabis, or products created from or which include cannabis,
by persons 21 years of age or older . . . shall be lawful and subject to
regulation by the Cannabis Regulatory Commission.” N.J. Const. art. IV, § 7,
¶ 13.
In February 2021, Governor Philip D. Murphy signed three bills into
law, giving practical effect to New Jersey’s marijuana legalization. See Press
Release: Governor Murphy Signs Historic Adult-Use Cannabis Reform Bills
Into Law (Feb. 22, 2021), https://nj.gov/governor/news/news/562021/
24
approved/20210222a.shtml. Though the ability to purchase recreational
marijuana remains months away, the legislation ended arrests for possession of
small amounts of marijuana, which numbered in the thousands even after the
amendment’s effective date. Amanda Hoover, Murphy Signs N.J. Legal Weed
Bills, Ending 3-Year Saga, NJ.com (Feb. 22, 2021), https://www.nj.com/
marijuana/2021/02/murphy-signs-nj-legal-weed-bills-ending-3-year-saga.html.
The most expansive of the three bills, the New Jersey Cannabis
Regulatory, Enforcement Assistance, and Marketplace Modernization Act,
amended the Code of Criminal Justice to exempt from any criminal or civil
punishment possession of six ounces or less of marijuana or seventeen grams
or less of hashish. L. 2021, c. 16, § 56. Possession of greater quantities is a
fourth-degree offense. Ibid. A separate bill set forth penalties for the
possession and use of marijuana by those under the age of twenty-one. See S.
3454 (2021). The new legislation also prohibits state law enforcement from
cooperating with federal authorities in enforcing the CSA. L. 2021, c. 16, §
52.
While workers may be drug tested under this new regime, an employer
may not take adverse action against an employee due to the employee’s
consumption of marijuana or the presence of cannabinoid metabolites in their
bodily fluid resulting from permitted conduct. Id. § 48. Presence of such
25
metabolites may, however, result in penalties or refusal to employ if it causes
the employer to violate a federal contract or lose federal funding. Id. § 47.
Those express deferential references to federal law recognize that state law
may not permit what federal law forbids, a principle as true for our
recreational use legislation as for our Compassionate Use Act.
B.
Notwithstanding New Jersey’s legalization of the medical and
recreational use of marijuana, the CSA must be considered because, under the
Supremacy Clause of the United States Constitution, U.S. Const. art. VI, cl. 2,
“state laws that ‘interfere with, or are contrary to the laws of congress, made in
pursuance of the constitution’ are invalid.” Puglia v. Elk Pipeline, Inc., 226
N.J. 258, 274 (2016) (quoting Wis. Pub. Intervenor v. Mortier, 501 U.S. 597,
604 (1991)). The principles of federal preemption are rooted in the Supremacy
Clause, In re Reglan Litig., 226 N.J. 315, 328 (2016), 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).
“Pre-emption may be either expressed or implied . . . .” Gade v. Nat’l
Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992). Congress may choose to
preempt state law with the express language of an enactment. Franklin Tower
One, L.L.C. v. N.M., 157 N.J. 602, 615 (1999). In the alternative, there are
26
two forms of implied preemption: field and conflict. Reglan, 226 N.J. at 328.
“Field preemption applies ‘where the scheme of federal regulation is “so
pervasive as to make reasonable the inference that Congress left no room for
the States to supplement it.”’” Ibid. (quoting Gade, 505 U.S. at 98). Express
and field preemption do not apply to the present matter, because the CSA
explicitly leaves room for state law to operate:
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.]
We therefore focus on conflict preemption. “[I]n the absence of express
language or implied congressional intent to occupy the field, a court must find
state law to be preempted ‘to the extent that it actually conflicts with federal
law.’” Maher v. N.J. Transit Rail Operations, Inc., 125 N.J. 455, 464 (1991)
(quoting Brown v. Hotel & Rest. Emps. & Bartenders Int’l Union Local 54,
468 U.S. 491, 501 (1984)). Conflict preemption requires an actual -- rather
than hypothetical or speculative -- conflict between federal and state law.
Feldman v. Lederle Labs., 125 N.J. 117, 135 (1991).
27
Conflict preemption occurs in two scenarios. First, conflict preemption
arises “where it is ‘impossible for a private party to comply with both state and
federal requirements.’” PLIVA, Inc. v. Mensing, 564 U.S. 604, 618 (2011)
(quoting Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995)). The second
context in which conflict preemption applies is when “state law ‘stands as an
obstacle to the accomplishment and execution of the full purposes and
objectives of Congress.’” Reglan, 226 N.J. at 329 (quoting Gade, 505 U.S. at
98). “When there is a conflict, ‘the federal law must prevail.’” Feldman, 125
N.J. at 135 (quoting Free v. Bland, 369 U.S. 663, 666 (1962)). The importance
of the state law is immaterial to a conflict preemption analysis when a valid
federal statute is present. Maher, 125 N.J. at 465.
“[P]re-emption is not to be lightly presumed.” Franklin Tower One, 157
N.J. at 615 (quoting Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 281
(1987)). “The case for federal pre-emption is particularly weak where
Congress has indicated its awareness of the operation of state law in a field of
federal interest, and has nonetheless decided to . . . tolerate whatever tension
there [is] between them.” Wyeth v. Levine, 555 U.S. 555, 575 (2009)
(alteration in original) (quoting Bonito Boats, Inc. v. Thunder Craft Boats,
Inc., 489 U.S. 141, 166-67 (1989)).
28
Central to our preemption analysis, therefore, is deciphering
congressional intent. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208
(1985) (“[T]he question whether a certain state action is pre-empted by federal
law is one of congressional intent. ‘“The purpose of Congress is the ultimate
touchstone.”’” (quoting Malone v. White Motor Corp., 435 U.S. 497, 504
(1978))). We must approach that task by examining not only the CSA’s plain
language, see United States v. Clintwood Elkhorn Mining Co., 553 U.S. 1, 11
(2008), but also “the purposes Congress sought to serve” through its
enactment, see Chapman v. Hous. Welfare Rts. Org., 441 U.S. 600, 608
(1979). We must also look beyond the language of the statute to the broader
framework in which the statute resides. See Village of Ridgefield Park v.
N.Y., Susquehanna & W. Ry. Corp., 163 N.J. 446, 453 (2000). Ultimately, a
determination of “[w]hether a state law stands as an obstacle to the
accomplishment of a federal objective[] requires a court to consider ‘the
relationship between state and federal laws as they are interpreted and applied ,
not merely as they are written.’” R.F. v. Abbott Labs., 162 N.J. 596, 618
(2000) (quoting Jones v. Rath Packing Co., 430 U.S. 519, 526 (1977)).
With those principles in mind, we turn to the CSA.
29
C.
Enacted by Congress in 1970, the CSA sought “to conquer drug abuse
and to control the legitimate and illegitimate traffic [of] controlled
substances.” Raich, 545 U.S. at 12. The CSA replaced a network of drug laws
with a “comprehensive regime.” Ibid.; see also 116 Cong. Rec. 33,300
(statement of Rep. Springer) (“[T]he purpose of this act is to bring together the
various laws affecting drugs in order to codify and consolidate them. It is
intended to make enforcement more uniform . . . .”). “Congress intended [for]
the CSA to strengthen rather than to weaken the prior drug laws.” United
States v. Moore, 423 U.S. 122, 139 (1975). The CSA separates controlled
substances into five schedules based on their accepted medical uses, risk of
abuse, and physical and psychological effects. Raich, 545 U.S. at 13.
Substances may not be placed on a particular schedule without specific
findings. 21 U.S.C. § 812(b). The Attorney General is empowered to add,
remove, and reschedule substances, id. § 811(a), and has delegated that
authority to the Drug Enforcement Administration, United States v. Kelly, 874
F.3d 1037, 1042 (9th Cir. 2017); 28 C.F.R. § 0.100(b).
Marijuana was placed in the strictest schedule -- Schedule I -- at the time
of the CSA’s enactment. Raich, 545 U.S. at 14. Substances on Schedule I
must be found to have a high potential for abuse, no currently accepted use for
30
medical treatment, and a lack of accepted safety measures for use under
medical supervision. 21 U.S.C. § 812(b)(1). Marijuana remains a Schedule I
drug today, id. § 812(c), Schedule I(c)(10), despite repeated efforts to petition
for its rescheduling, Nation v. Trump, 395 F. Supp. 3d 1271, 1275 (N.D. Cal.
2019). That original placement reflected concerns among legislators at the
time about the increasing prevalence of marijuana, particularly among young
people, see 116 Cong. Rec. 33,649-50 (statements of Reps. Anderson and
Keith), although not all members of Congress agreed that it warranted such
classification, see 116 Cong. Rec. 33,660 (statement of Rep. Ryan)
(“[M]arihuana is found on schedule I with such drugs as heroin, morphine, and
LSD . . . . [T]he studies which have thus far been completed show that
whatever harmful effects marihuana may have, they are not comparable to the
effects of the other drugs on schedule I.”).
Except as otherwise authorized, the CSA makes it unlawful to knowingly
or intentionally “possess with intent to manufacture, distribute, or dispense, a
controlled substance.” 21 U.S.C. § 841(a)(1). The CSA also makes unlawful,
subject to exceptions, the knowing or intentional possession of a controlled
substance “unless such substance was obtained directly, or pursuant to a valid
prescription or order, from a practitioner, while acting in the course of his
professional practice.” Id. § 844(a).
31
The “valid prescription” language contained in § 844(a) cannot,
however, apply to marijuana because the CSA prevents marijuana from being
validly prescribed. See United States v. Johnson, 228 F. Supp. 3d 57, 62
(D.D.C. 2017) (citing United States v. Oakland Cannabis Buyers’ Coop., 532
U.S. 483, 491 (2001)); United States v. Harvey, 794 F. Supp. 2d 1103, 1105-
06 (S.D. Cal.), aff’d, 659 F.3d 1272 (9th Cir. 2011). Thus, marijuana is not
included in the CSA’s prescription requirements, see 21 U.S.C. § 829, because
“for purposes of the [CSA], marijuana has ‘no currently accepted medical use’
at all,” Oakland Cannabis Buyers’ Coop., 532 U.S. at 491 (quoting one of the
Schedule I criteria).
On the enforcement front, guidance from senior personnel in the
Department of Justice (DOJ) to the offices of the United States Attorneys
issued over the past decade or so has, at times, deprioritized -- but not
prohibited -- federal prosecution of marijuana activities that are legal under
state law. For example, in 2009, Deputy Attorney General David Ogden
advised United States Attorneys that they “should not focus federal resources .
. . on individuals whose actions are in clear and unambiguous compliance with
existing state laws providing for the medical use of marijuana,” but rather
prioritize larger-scale trafficking operations. Memorandum for Selected
United States Attorneys 1-2 (Oct. 19, 2009).
32
Four years later, as state ballot initiatives sought to legalize possession
of small quantities of marijuana, Deputy Attorney General James Cole
reiterated the DOJ’s commitment to enforcing the CSA but provided eight
priorities in light of limited DOJ resources, which included preventing:
distribution to minors, marijuana revenue from reaching criminal enterprises,
violence or the use of firearms in marijuana cultivation and distribution , and
growth of marijuana on public lands. Memorandum for All United States
Attorneys 1-2 (Aug. 29, 2013) (2013 Cole Memo). Cole acknowledged the
DOJ’s traditional reliance on state and local authorities in addressing lower-
level marijuana activity through enforcement of their own laws and advised
that states with strong regulatory and enforcement systems were less likely to
threaten federal priorities. Id. at 2-3.
Following the change of administrations, Attorney General Jefferson B.
Sessions, III, advised that “[g]iven the Department’s well-established general
principles, previous nationwide guidance specific to marijuana enforcement is
unnecessary and is rescinded, effective immediately.” Memorandum for All
United States Attorneys 1 (Jan. 4, 2018). Attorney General William Barr
reversed course to some extent, stating that he was “accepting the Cole
Memorandum for now,” but that he had “generally left it up to the U.S.
Attorneys in each state to determine what the best approach is in that state.”
33
Sara Brittany Somerset, Attorney General Barr Favors A More Lenient
Approach to Cannabis Prohibition, Forbes (Apr. 15, 2019),
https://www.forbes.com/sites/sarabrittanysomerset/2019/04/15/attorney-
general-barr-favors-a-more-lenient-approach-to-cannabis-legalization/
?sh=6e82d477c4c8.
Significantly, it is not only the Executive Branch that has muddied the
waters between state marijuana laws and federal enforcement; more
importantly, Congress has also deprioritized prosecution for possession of
medical marijuana while leaving the CSA otherwise unchanged.
In the relevant rider to the most recent federal Appropriations Act,
Congress prohibited the DOJ from using allocated funds to prevent states,
including New Jersey, from implementing their medical marijuana laws. See
Consolidated Appropriations Act, 2021, Pub. L. No. 116-260, § 531, 134 Stat.
1182, 1282-83 (2020). Specifically, § 531 provides that
[n]one of the funds made available under this Act to the
Department of Justice may be used, with respect to any
of the States of Alabama, Alaska, Arizona, Arkansas,
California, Colorado, Connecticut, Delaware, Florida,
Georgia, Hawaii, Illinois, Indiana, Iowa, Kentucky,
Louisiana, Maine, Maryland, Massachusetts, Michigan,
Minnesota, Mississippi, Missouri, Montana, Nevada,
New Hampshire, New Jersey, New Mexico, New York,
North Carolina, North Dakota, Ohio, Oklahoma,
Oregon, Pennsylvania, Rhode Island, South Carolina,
South Dakota, Tennessee, Texas, Utah, Vermont,
Virginia, Washington, West Virginia, Wisconsin, and
34
Wyoming, or with respect to the District of Columbia,
the Commonwealth of the Northern Mariana Islands,
the United States Virgin Islands, Guam, or Puerto Rico,
to prevent any of them from implementing their own
laws that authorize the use, distribution, possession, or
cultivation of medical marijuana.
[Ibid.]
Similar language has been included in appropriations riders dating back
to the 2015 federal budget, although the list of states and territories with
medical marijuana legislation has been expanded over the years to reflect new
enactments. See Consolidated Appropriations Act, 2020, Pub. L. No. 116-93,
§ 531, 133 Stat. 2317, 2431 (2019); Consolidated Appropriations Act, 2019,
Pub. L. No. 116-6, § 537, 133 Stat. 13, 138 (2019); Consolidated
Appropriations Act, 2018, Pub. L. No. 115-141, § 538, 132 Stat. 348, 444-45
(2018); Consolidated Appropriations Act, 2017, Pub. L. No. 115-31, § 537,
131 Stat. 135, 228 (2017); Consolidated Appropriations Act, 2016, Pub. L. No.
114-113, § 542, 129 Stat. 2242, 2332-33 (2015); Consolidated and Further
Continuing Appropriations Act, 2015, Pub. L. No. 113-235, § 538, 128 Stat.
2130, 2217 (2014); see also United States v. Kleinman, 880 F.3d 1020, 1027
(9th Cir. 2017) (noting that the riders for the years 2015 through 2017 were
“essentially the same” (quoting United States v. Nixon, 839 F.3d 885, 887 (9th
Cir. 2016))).
35
It appears from the Congressional Record that the impetus for these
riders has its origins in the Tenth Amendment -- reserving to the states powers
not granted to the federal government -- and they reflect Congress’s intention
to limit the role of federal policy in matters of criminal justice. See 160 Cong.
Rec. H4878 (daily ed. May 28, 2014) (statement of Rep. Rohrabacher) (“It
should be disturbing to any constitutionalist that the Federal Government
insists on the supremacy of laws that allow for the medical use of marijuana.”).
These continuing riders have “changed” federal law by prohibiting the DOJ
“from spending appropriated funds to prosecute individuals who are acting in
compliance with their State’s medical marijuana laws” and “restrict[ing] the
Federal Government from superseding State law when it comes to the use of
medical marijuana.” 163 Cong. Rec. H311 (daily ed. Jan. 11, 2017) (statement
of Rep. Rohrabacher).
The tension between Congress’s appropriations riders and the CSA’s
classification and criminalization of marijuana is manifest. Mindful that
preemption analysis turns on legislative intent, see Lueck, 471 U.S. at 208, we
turn to case law examining whether and under what circumstances
appropriations acts -- reflecting a shift in intent with respect to earlier
legislation -- are deemed to impliedly suspend or supplant the earlier law.
36
D.
In considering the effect of the recent appropriations riders on the CSA
as applied to the Order, we find particularly instructive guidance from the
United States Supreme Court and several circuit courts. See Glukowsky v.
Equity One, Inc., 180 N.J. 49, 64 (2004) (“[T]he principle of comity instructs
state courts to give due regard to a federal court’s interpretation of a federal
statute.”).
For example, in United States v. Dickerson, the Supreme Court stated
that “[t]here can be no doubt that Congress could suspend or repeal [an]
authorization . . . and it could accomplish its purpose by an amendment to an
appropriation bill, or otherwise.” 310 U.S. 554, 555 (1940); accord United
States v. Will, 449 U.S. 200, 222 (1980). And “although repeals by
implication are especially disfavored in the appropriations context, Congress
nonetheless may amend substantive law in an appropriations statute, as long as
it does so clearly.” Robertson v. Seattle Audubon Soc’y, 503 U.S. 429, 440
(1992) (citation omitted); see also Me. Cmty. Health Options v. United States,
590 U.S. ___, 140 S. Ct. 1308, 1323-27 (2020) (concluding that Congress’s
failure to fund Patient Protection and Affordable Care Act obligations did not
impliedly repeal the ACA). Harmonizing conflicting statutes is preferred, but
courts are not required to “approach the statute[s] with blinders and reconcile
37
them at all costs, even when the second enactment is an appropriations
measure.” Preterm, Inc. v. Dukakis, 591 F.2d 121, 133 (1st Cir. 1979).
Though it did not discuss implied repeal, United States v. McIntosh
tasked the Ninth Circuit with resolving an issue similar to the one at hand --
determining whether the 2016 appropriations rider prohibiting DOJ
interference with state medical marijuana laws prevented the DOJ from
prosecuting activities allegedly compliant with state law. 833 F.3d 1163 ,
1168-70 (9th Cir. 2016). The court concluded that it did, stating that “at a
minimum, [the rider] prohibit[ed the] DOJ from spending funds from relevant
appropriations acts for the prosecution of individuals who engaged in conduct
permitted by the State Medical Marijuana Laws and who fully complied with
such laws.” Id. at 1176-77. In so concluding, the Ninth Circuit recognized the
“temporal nature” of the issue -- Congress could restore funding for such
prosecutions any day or never again -- but concluded that, if the DOJ sought to
continue prosecuting the appellants, the appellants were entitled to evidentiary
hearings to determine whether they strictly complied with state law. Id. at
1179; see also Tin Cup, LLC v. U.S. Army Corps of Eng’rs, 904 F.3d 1068,
1073 (9th Cir. 2018) (“There is . . . ‘a very strong presumption’ that if an
appropriations act changes substantive law, it does so only for the fiscal year
for which the bill was passed.” (quoting Bldg. & Constr. Trades Dep’t, AFL-
38
CIO v. Martin, 961 F.2d 269, 273 (D.C. Cir. 1992))); Strawser v. Atkins, 290
F.3d 720, 734 (4th Cir. 2002) (“‘Where Congress chooses’ to amend
substantive law in an appropriations rider, ‘[courts] are bound to follow
Congress’s last word on the matter even in an appropriations law.’” (quoting
City of Los Angeles v. Adams, 556 F.2d 40, 49 (D.C. Cir. 1977))).
Those federal decisions ring familiar because they mirror our own
reading of appropriations acts as signifiers of legislative intent to suspend
earlier statutory enactments. See City of Camden v. Byrne, 82 N.J. 133, 154-
55 (1980). In Byrne, a collection of municipalities and counties brought
actions against Governor Brendan T. Byrne, the Legislature, and other
government officials for failure to appropriate and expend state funds allotted
by several statutes to municipalities and counties. Id. at 141-44. The
allocations were not made because they were excluded from the Legislature’s
general appropriations acts or eliminated by Governor Byrne’s line-item veto.
Id. at 142-44.
After discussing the constitutional issues implicated in the matter, we
moved to the defendants’ contention that the statutes had been suspended,
supplanted, or repealed by the subsequent passage of annual appropriations
acts, which intentionally excluded the expenditures. Id. at 153. The
appropriations acts and original statutes were irreconcilable because they made
39
different uses of the same limited funds. Ibid. Although we recognized a
strong presumption against any implied nullification of statutes , we concluded
that “this presumption may be overcome when there is a clear showing that
two legislative measures are patently repugnant or inconsistent.” Id. at 154.
To so find, we looked to the intent of the Legislature. Ibid.Applied to the facts presented in Byrne, we found that the failure to
appropriate the funding called for in the statutes was an intentional act of the
Legislature, as was its decision not to override the Governor’s line-item
vetoes. Ibid. Such unmistakable legislative intent reflected in the
appropriations laws “necessarily supersede[d] any previously expressed
legislative desires at least for the duration of the particular appropriation act. ”
Ibid. We thus read the appropriations acts as the manifested intent of the
Legislature to give no effect at all to the earlier statutes, stating that “[t]he
earlier statutes [could not] coexist with the enacted appropriation and ,
consequently, must be deemed [to have been] suspended by adoption of the
later appropriation acts.” Id. at 154-155.
We noted, as well, the limited applicability of appropriations laws --
confined to a particular fiscal year -- and concluded that their effect on the
previously enacted statutes was best expressed as implied suspension as
opposed to implied repeal, even though that limitation did not change our
40
general analysis. Id. at 153-54; see also McIntosh, 833 F.3d at 1179
(recognizing the “temporal nature” of Congress’s appropriations rider as
applied to DOJ enforcement of the CSA). Our courts continue to recognize
appropriations acts as expressions of legislative intent. See Guaman v. Velez,
421 N.J. Super. 239, 258 (App. Div. 2011); Mid-Atl. Solar Energy Indus.
Ass’n v. Christie, 418 N.J. Super. 499, 505-06 (App. Div. 2011).
E.
With federal case law and Byrne as our guides to deciphering
congressional intent here, we conclude that it is possible for M&K to abide by
both the CSA and the Compassionate Use Act at the present time, and that the
latter does not currently create an obstacle to the accomplishment of
congressional objectives. As such, the Compassionate Use Act is not
preempted by the CSA as applied to the Order.
The perceived tension, as stated, stems from the Order entered against
M&K. See N.J.S.A. 34:15-28.2 (providing for penalties that may be imposed
on employers and insurers that fail to comply with compensation court orders).
Though the Compassionate Use Act shields those acting in compliance with its
provisions from criminal liability, see N.J.S.A. 24:6I-6(a), marijuana
possession remains illegal under federal law, 21 U.S.C. §§ 841(a), 844(a).
This despite Congress’s present will to defund DOJ actions that prevent states
41
from implementing their own medical marijuana laws, Consolidated
Appropriations Act, 2021, Pub. L. No. 116-260, § 531, 134 Stat. 1182, 1282-
83 (2020), including prosecuting those complying with state law, see
McIntosh, 833 F.3d at 1176-77.
Byrne instructs us to read statutes and subsequent appropriations acts in
tandem. To do as M&K asks -- to focus purely on whether state law permits
and, in this case, demands what federal law forbids -- would be to completely
disregard the most recent expression of Congress’s intent in its appropriations
acts. See Strawser, 290 F.3d at 734. We find that doing so would be
incongruous with the task before us and do not so limit ourselves here. We
must also consider the broader framework in which the statutes exist. See
Village of Ridgefield Park, 163 N.J. at 453.
Here, the CSA expressly contemplates a role for state law absent a
“positive conflict” with the CSA. See 21 U.S.C. § 903; see also Gonzales v.
Oregon, 546 U.S. 243, 251 (2006) (discussing Schedule II controlled
substances). DOJ guidance has acknowledged both federal prosecutors’
historic reliance on state and local laws and law enforcement in addressing
lower-level marijuana offenses and the fact that state marijuana laws generally
do not conflict with federal investigative and prosecutorial priorities. 2013
Cole Memo, supra, at 2-3. The Compassionate Use Act thus seeks to operate
42
in the space afforded to it by federal law and federal priorities. See N.J.S.A.
24:6I-2(c) to (d) (noting the collection of other states that have enacted similar
medical marijuana programs and finding that the Act does not place New
Jersey in violation of federal law).
Congress has, for seven consecutive fiscal years, prohibited the DOJ
from using funds to interfere with state medical marijuana laws through
appropriations riders. The present rider and its predecessors have “changed”
federal law and “restrict[ed] the Federal Government from superseding State
law when it comes to the use of medical marijuana.” See 163 Cong. Rec.
H311 (daily ed. Jan. 11, 2017) (statement of Rep. Rohrabacher). The rider
language leaves “no doubt” as to its effect by “forbid[ding] the use of funds”
to interfere with state medical marijuana schemes. See The Last Best Beef,
LLC v. Dudas, 506 F.3d 333, 339-40 (4th Cir. 2007) (holding that “Congress
intended to enact a discrete and narrow exception to the Lanham Act” via an
appropriations action). Despite McIntosh’s inviting correction by Congress,
833 F.3d at 1179 (“If Congress intends to prohibit a wider or narrower range
of DOJ actions, it certainly may express such intention, hopefully with greater
clarity, in the text of any future rider.”), those riders have used substantially
the same language year after year. It appears to us that this repeated language
is Congress speaking with complete awareness of McIntosh and absolute
43
approval of its reasoning. See 163 Cong. Rec. H311 (daily ed. Jan. 11, 2017)
(statement of Rep. Rohrabacher) (“Importantly . . . the Ninth Circuit Court of
Appeals ruled in [McIntosh] that Federal funds cannot be used to prosecute
those in compliance with their State’s medical marijuana laws. This provision
will be part of American law as long as it is renewed and Congress makes it
part of the law.”). Congress is empowered to amend the CSA via an
appropriations action provided “it does so clearly,” see Robertson, 503 U.S. at
440, and the most recent appropriations rider, in our view, “clearly is intended
as a substitute” to the CSA as applied to the Compassionate Use Act, see
Miccosukee Tribe of Indians of Fla. v. U.S. Army Corps of Eng’rs, 619 F.3d
1289, 1299 (11th Cir. 2010). Therefore, we find that Congress has spoken
through the most recent appropriations rider and give it the final say.
Strawser, 290 F.3d at 734; Adams, 556 F.2d at 48-49.
We thus conclude that the CSA, as applied to the Compassionate Use
Act and the Order at issue, is effectively suspended by the most recent
appropriations rider for at least the duration of the federal fiscal year and that
it would be “inappropriate for this Court to give any legal effect whatsoever to
the earlier statutory enactment[].” Byrne, 82 N.J. at 154-55. “The earlier
statute[] cannot coexist with the enacted appropriation and, consequently, must
be deemed to be suspended by adoption of the later appropriation act[]. ” Id. at
44
154. We repeat that “[t]he case for federal pre-emption is particularly weak
where Congress has indicated its awareness of the operation of state law in a
field of federal interest, and has nonetheless decided to . . . tolerate whatever
tension there [is] between them.” Wyeth, 555 U.S. at 575 (second alteration in
original) (quoting Bonito Boats, Inc., 489 U.S. at 166-67).
As in Byrne, we find here that this clear, volitional act in the form of
appropriations law takes precedence over the earlier legislation. Because DOJ
enforcement of the CSA may not, by congressional action, interfere with
activities compliant with the Compassionate Use Act, we find that there is no
“positive conflict” and that the CSA and the Act may coexist as applied to the
Order. See 21 U.S.C. § 903. Qualified patients may continue to possess and
use medical marijuana, and related compensation orders may be entered while
federal authorities continue to enforce the CSA to the extent Congress permits.
The federal and state acts can thus “consistently stand together,” see ibid., and
it is possible for M&K to comply with both, see Mensing, 564 U.S. at 618.
The Compassionate Use Act does not currently present an obstacle to
Congress’s objectives as articulated in the recent appropriations riders, see
Reglan, 226 N.J. at 329, and so the CSA does not preempt the Compassionate
Use Act as applied to the Order. As we have previously recognized, and we
find to be the case here with respect to the recent appropriations riders’ effect
45
on the CSA, “legislative intent through appropriation actions . . . sometimes
speak[s] louder than words.” State v. Cannon, 128 N.J. 546, 568 (1992).
We acknowledge that our decision here departs from the holdings of
other state supreme courts that have come to different conclusions when faced
with the precise issue before us -- whether state medical marijuana laws are
preempted as applied to workers’ compensation orders compelling employers
to reimburse workers’ medical marijuana costs. See Bourgoin, 187 A.3d at 22
(“Because the CSA preempts the [Maine Medical Use of Marijuana Act] when
the [Act] is used as the basis for requiring an employer to reimburse an
employee for the cost of medical marijuana, the order based on the [Act] must
yield.”); Wright’s Case, 156 N.E. 3d 161, 175 (Mass. 2020) (concluding that
the plain language of the state reimbursement limitation provision prohibited
compelling workers’ compensation insurers to reimburse the cost of medical
marijuana).
We are urged to follow suit with Bourgoin and Wright’s Case.
However, while we may find their reasoning instructive, they in no way bind
our Court or predetermine our analysis. See Matthews v. City of Atl. City, 84
N.J. 153, 162 (1980). Our decision today is consonant with our reading of the
relevant federal authorities and our settled principles of preemption analysis
and deciphering legislative intent.
46
Additionally, after oral argument, the New Hampshire Supreme Court
concluded that there is “no direct conflict” between the CSA and a state order
to reimburse a worker’s medical marijuana costs and that reimbursement did
not represent an obstacle to congressional objectives. Appeal of Panaggio, ___
A.3d ___, ___ (N.H. 2021) (slip op. at 6, 11). Agreeing with the Bourgoin
dissent and our Appellate Division’s decision in this case, Panaggio also found
that the insurer would lack the active participation and mens rea necessary for
aiding-and-abetting liability, id. ___ (slip op. at 8), which we will address in
the next section.
We close by repeating the “temporal nature” of the issue before us and
its dependence on the future acts of Congress. See McIntosh, 833 F.3d at
1179. Funding to support federal prosecution of those acting within the scope
of the Compassionate Use Act may be restored soon, or never again. We
regard the CSA as suspended, rather than repealed, with respect to orders like
the one at issue here because the appropriations rider on which we rely is of a
limited lifespan and may be repeated, removed, or changed within the year.
See Byrne, 82 N.J. at 153.
F.
Our preemption analysis notwithstanding, we address M&K’s contention
that its compliance with the Order would subject it to aiding-and-abetting
47
liability under 18 U.S.C. § 2 on the theory that it would be assisting in Hager’s
possession of marijuana, contrary to the CSA. M&K counters the Appellate
Division’s conclusion “that ‘one cannot aid and abet a completed crime,’”
Hager, 462 N.J. Super. at 166 (quoting United States v. Ledezma, 26 F.3d 636,
642 (6th Cir. 1994)), by claiming that the offense at issue here is ongoing as
opposed to completed. It similarly argues that its compliance risks conspiracy
liability under 21 U.S.C. § 846. We are unpersuaded.
“To aid and abet a crime, a defendant must not just ‘in some sort
associate himself with the venture,’ but also ‘participate in it as in something
that he wishes to bring about’ and ‘seek by his action to make it succeed.’”
Rosemond v. United States, 572 U.S. 65, 76 (2014) (quoting Nye & Nissen v.
United States, 336 U.S. 613, 619 (1949)). Proof is required “that the
defendant had the specific intent to facilitate the crime.” United States v.
Centeno, 793 F.3d 378, 387 (3d Cir. 2015). To support an aiding-and-abetting
conviction, “the Government must prove: ‘(1) that another committed a
substantive offense; and (2) the one charged with aiding and abetting knew of
the commission of the substantive offense and acted to facilitate it.’” Ibid.(quoting United States v. Mercado, 610 F.3d 841, 846 (3d Cir. 2010)).
“[W]hether he participates with a happy heart or a sense of foreboding” is of
48
no matter, provided the accomplice “knowingly elected to aid in the
commission of” the offense. Rosemond, 572 U.S. at 79-80 (emphasis added).
By the very nature of its appeals to both the Appellate Division and this
Court, M&K has made it clear that it does not wish to “participate” and “act[]
to make . . . succeed” the federal offense in question here -- Hager’s
possession of marijuana. It has gone to great pains to avoid facilitating an
offense. We trust that our affirmance of the compensation court’s Order will
not change M&K’s position. Likewise, reimbursing Hager under court
mandate can hardly be interpreted as M&K “elect[ing]” to aid in Hager’s
possession of marijuana, contrary to federal law. Rather, it is being compelled
to do so by the Order.
Even accepting M&K’s contention that the court-mandated
reimbursement payments constitute an ongoing offense in which the
reimbursement for one illegal purchase and possession enables the next, it fails
to show -- and we strain to find -- how its compliance with the Order exhibits a
specific intent to aid-and-abet Hager’s marijuana possession. M&K’s position
that it faces aiding-and-abetting liability because it will reimburse Hager while
knowing what the funds will be used for does not persuade us that it satisfies
the specific intent requirement when the facts so clearly indicate that it will be
doing so against its will and at the behest of this Court.
49
M&K’s argument that compliance with the Order places it at risk of
conspiracy liability must also fail for similar reasons. Any individual who
conspires to commit an offense prohibited by the CSA “shall be subject to the
same penalties as those prescribed for the offense.” 21 U.S.C. § 846. A
conspiracy charge under § 846 “can only be sustained if the defendant
‘knowingly and intentionally became a member of the conspiracy.’” United
States v. Ruiz, 932 F.2d 1174, 1182 (7th Cir. 1991) (quoting the Seventh
Circuit’s Pattern Criminal Federal Jury Instructions for conspiracy). “[T]he
government must show . . . that the alleged conspirators shared a ‘unity of
purpose[,’] the intent to achieve a common goal, and an agreement to work
together toward the goal.” United States v. Korey, 472 F.3d 89, 93 (3d Cir.
2007) (quoting United States v. Cartwright, 359 F.3d 281, 286 (3d Cir. 2004)).
Again, we are unable to discern a “unity of purpose” from M&K’s
repeated attempts to disassociate itself from Hager’s marijuana possession and
use. The parties are of two competing minds on the subject and M&K went as
far as to present testimony before the compensation court that Hager does not
require any treatment at all -- let alone the ongoing prescription of medical
marijuana. Likewise, to the extent that the Order requiring reimbursement
payments creates a conspiracy between Hager and M&K, M&K’s membership
50
cannot be said to be intentional. Rather, its participation is being compelled
by the courts.
VII.
The judgment of the Appellate Division is affirmed. M&K is ordered to
reimburse costs for, and reasonably related to, Hager’s prescribed medical
marijuana.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and PIERRE-LOUIS join in JUSTICE
SOLOMON’S opinion.
51