MAINE	SUPREME	JUDICIAL	COURT	                                         Reporter	of	Decisions	
Decision:	 2018	ME	77	
Docket:	   WCB-16-433	
Argued:	   September	13,	2017	
Decided:	  June	14,	2018	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
Majority:	 SAUFLEY,	C.J.,	and	MEAD,	GORMAN,	HJELM,	and	HUMPHREY,	JJ.	
Dissent:	  JABAR	and	ALEXANDER,	JJ.	
Dissent:	  ALEXANDER,	J.	
	
	
                            GAETAN	H.	BOURGOIN	
                                      	
                                    v.	
                                      	
                    TWIN	RIVERS	PAPER	COMPANY,	LLC,	et	al.	
	
	
HJELM,	J.		
	

	      [¶1]	 	 After	 sustaining	 a	 work-related	 injury,	 Gaetan	 H.	 Bourgoin	 was	

issued	a	certification	to	use	medical	marijuana	as	a	result	of	chronic	back	pain.		

He	 successfully	 petitioned	 the	 Workers’	 Compensation	 Board	 for	 an	 order	

requiring	his	former	employer,	Twin	Rivers	Paper	Company,	LLC,	to	pay	for	the	

medical	marijuana.		On	this	appeal	from	the	decision	of	the	Appellate	Division	

affirming	 that	 award,	 we	 are	 called	 upon	 for	 the	 first	 time	 to	 consider	 the	

relationship	 between	 the	 federal	 Controlled	 Substances	 Act	 (CSA)	 and	 the	

Maine	Medical	Use	of	Marijuana	Act	(MMUMA).		We	conclude	that	in	the	narrow	

circumstances	 of	 this	 case—where	 an	 employer	 is	 subject	 to	 an	 order	 that	
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would	require	it	to	subsidize	an	employee’s	acquisition	of	medical	marijuana—

there	is	a	positive	conflict	between	federal	and	state	law,	and	as	a	result,	the	

CSA	 preempts	 the	 MMUMA	 as	 applied	 here.	 	 See	 21	 U.S.C.S.	 §	 903	 (LEXIS	

through	Pub.	L.	No.	115-181).		We	therefore	vacate	the	decision	of	the	Appellate	

Division.1			

                                           I.		BACKGROUND	

	       [¶2]	 	 Twin	 Rivers	 Paper	 Company,	 LLC,	 and	 Sedgwick	 Claims	

Management	Services	(collectively,	Twin	Rivers)	appeal	from	a	decision	of	the	

Workers’	Compensation	Board	Appellate	Division	affirming	a	hearing	officer’s	

(Pelletier,	 HO) 2 	decree	 that	 ordered	 Twin	 Rivers	 to	 pay	 the	 cost	 of	 medical	

marijuana	used	by	its	employee,	Gaetan	H.	Bourgoin.			

        [¶3]	 	 We	 draw	 the	 following	 facts,	 which	 are	 supported	 by	 the	 record,	

from	the	hearing	officer’s	decree.		See	Bailey	v.	City	of	Lewiston,	2017	ME	160,	

¶	2,	168	A.3d	762.	


    1		Twin	Rivers	also	challenges	the	Appellate	Division’s	decision	on	several	alternative	grounds:	

(1)	that	 Twin	 Rivers	 is	 a	 “private	 health	 insurer”	 and	 therefore	 is	 not	 required	 to	 reimburse	 an	
employee	 for	 medical	 marijuana	 treatment	 pursuant	 to	 22	 M.R.S.	 §	 2426(2)(A)	 (2017);	 (2)	 that	
medical	 marijuana	 is	 not	 a	 “reasonable	 and	 proper”	 treatment	 pursuant	 to	 the	 Maine	 Workers’	
Compensation	Act,	39-A	M.R.S.	§	206	(2017);	and	(3)	that	the	hearing	officer	erred	by	rejecting	the	
findings	of	the	independent	medical	examiner,	see	id.	§	312(7)	(2017).		Because	the	order	requiring	
Twin	Rivers	to	pay	for	Bourgoin’s	medical	marijuana	is	barred	by	the	CSA,	we	need	not	and	do	not	
reach	these	other	reasons	why	Twin	Rivers	contends	the	order	should	be	set	aside.	
    2		The	decree	was	entered	on	March	16,	2015,	before	the	change	in	title	from	“hearing	officer”	to	

“administrative	law	judge.”		See	P.L.	2015,	ch.	297	(effective	Oct.	15,	2015).	
                                                                                        3	

	     [¶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	
                                                                                                            4	

pay	for	Bourgoin’s	 medical	 marijuana	is	barred	by	the	CSA	even	if	his	use	of	

medical	marijuana	were	permitted	by	the	MMUMA.		Following	a	hearing,	the	

hearing	 officer	 granted	 Bourgoin’s	 petition	 in	 a	 written	 decision	 issued	 in	

March	of	2015.		Twin	Rivers	appealed	to	the	Appellate	Division,	which	affirmed	

the	hearing	officer’s	decision	in	August	of	2016.		We	then	granted	Twin	Rivers’	

petition	 for	 appellate	 review.	 	 See	 39-A	 M.R.S.	 §	 322	 (2017);	 M.R.	 App.	P.	23	

(Tower	2016).3	

                                             II.		DISCUSSION	

	         [¶7]		Twin	Rivers	argues	that	the	Controlled	Substances	Act,	21	U.S.C.S.	

§§	801-904	(LEXIS	through	Pub.	L.	No.	115-181),	preempts	application	of	the	

MMUMA	 as	 a	 predicate	 for	 an	 order	 that	 would	 compel	 Twin	 Rivers	 to	

reimburse	Bourgoin	for	the	use	of	medical	marijuana.		Federal	preemption	is	a	

question	of	law	that	we	review	de	novo.		Guardianship	of	Smith,	2011	ME	51,	

¶	10,	17	A.3d	136.	

A.        Preemption	Principles	

          [¶8]		The	preemption	analysis	must	begin	with	the	Supremacy	Clause	of	

the	United	States	Constitution,	which	“unambiguously	provides	that	if	there	is	



     3		 The	 restyled	Maine	 Rules	 of	 Appellate	 Procedure	 do	 not	apply	 because	 this	 appeal	was	 filed	

prior	to	September	1,	2017.		See	M.R.	App.	P.	1	(restyled	Rules).	
                                                                                          5	

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	
                                                                                         6	

“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	
                                                                                      7	

      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.	
                                                                                       8	

§§	801-904,	which	establishes	laws	pertinent	to	drug	control	and	enforcement.		

See	 Pub.	 L.	No.	91-513,	 §§	 100-709,	 84	 Stat.	 1236,	 1242-1284.	 	 The	 United	

States	Supreme	Court	has	characterized	the	CSA	as	“a	closed	regulatory	system	

making	 it	 unlawful	 to	 manufacture,	 distribute,	 dispense,	 or	 possess	 any	

controlled	 substance	 except	 in	 a	 manner	 authorized	 by	 the	 CSA.”	 	 Raich,	

545	U.S.	 at	 13;	 see	 also	 21	 U.S.C.S.	 §	 801(1)-(6)	 (establishing	 Congressional	

“findings	 and	declarations”	regarding	controlled	substances);	United	States	v.	

Moore,	 423	 U.S.	 122,	 134-35	 (1975)	 (discussing	 the	 legislative	 history	 of	 the	

CSA).		

      [¶13]		The	CSA	classifies	substances	subject	to	that	legislation	into	five	

schedules	 that	 are	 differentiated	 based	 on	 three	 factors:	 their	 respective	

potential	 for	 abuse,	 the	 existence—or	 absence—of	 their	 currently	 accepted	

medical	use,	and	risks	they	pose	even	when	used	under	medical	supervision.		

See	21	U.S.C.S	§	812(a),	(b).		Marijuana	is	classified	as	a	Schedule	I	drug,	see	id.	

§	 812(c)(Sched.	 I)(c)(10),	 which	 is	 the	 category	 of	 substances	 that,	 as	

determined	 by	 Congress,	 have	 a	 high	 potential	 for	 abuse,	 do	 not	 have	 a	

currently	 accepted	 medical	 use	 for	 treatment,	 and	 pose	 unacceptable	 safety	
                                                                                                     9	

risks	even	under	medical	supervision,	see	id.	§	812(b)(1)(A)-(C).4		This	means	

that,	with	one	exception	that	is	not	applicable	here,	see	infra	n.5,	federal	law	

bars	the	prescribed	use	of	marijuana—and	of	any	other	Schedule	I	drug—even	

in	 a	 state	 with	 local	 laws	 allowing	 the	 medical	 use	 of	 marijuana.	 	 See	 id.	

§§	812(b)(1)(A)-(C)	(listing	the	“findings”	required	to	classify	a	substance	as	a	

Schedule	 I	 drug),	 829	 (establishing	 parameters	 for	 prescriptions	 of	 schedule	

II-V	drugs);	see	also	Raich,	545	U.S.	at	14,	27;	United	States	v.	Oakland	Cannabis	

Buyers’	 Coop.,	 532	 U.S.	 483,	 494	 (2001);	 Mont.	 Caregivers	 Ass’n,	 LLC	 v.	 United	

States,	 841	F.	 Supp.	 2d	 1147,	 1149-50	 (D.	 Mont.	 2012);	 Ross	 v.	 RagingWire	

Telecomms.,	Inc.,	174	P.3d	200,	204	(Cal.	2008);	People	v.	Crouse,	388	P.3d	39,	

41-42	(Colo.	2017).	

       [¶14]	 	 Although	 the	 CSA	 requires	 periodic	 updates	 of	 the	 schedules	 of	

controlled	 substances	 by	 the	 United	 States	 Attorney	 General,	 see	 21	 U.S.C.S.	

§§	811,	812(a),	marijuana	has	remained	a	Schedule	I	drug	ever	since	the	CSA	

was	enacted	in	1970.		See	Raich,	545	U.S.	at	15	n.23	(discussing	the	history	of	

challenges	 to	 reclassify	 marijuana	 from	 1972	 through	 2001).	 	 This	 is	 true	

notwithstanding	 efforts	 by	 some	 to	 reclassify	 it—including,	 most	 recently,	


   4		Substances	listed	in	the	other	four	schedules	are	deemed	to	present	lesser	concerns	in	relation	

to	one	or	more	of	the	three	criteria	used	for	categorization	purposes.		See	21	U.S.C.S.	§	812(b)(2)-(5)	
(LEXIS	through	Pub.	L.	No.	115-181).			
                                                                                                           10	

2016	 denials	 of	 a	 challenge	 filed	 in	 2011,	 see	 Denial	 of	 Petition	 to	 Initiate	

Proceedings	 to	 Reschedule	 Marijuana,	 81	 Fed.	 Reg.	 53,687,	 53,688-53,766	

(Aug.	12,	2016),	and	in	2009,	see	Denial	of	Petition	to	Initiate	Proceedings	to	

Reschedule	Marijuana,	81	Fed.	Reg.	53,767,	53,767-53,845	(Aug.	12,	2016).		See	

also	Americans	for	Safe	Access	v.	Drug	Enf’t	Admin.,	706	F.3d	438,	440-41,	452	

(D.C.	Cir.	2013)	(affirming	the	denial	of	a	petition	to	reclassify	marijuana	in	a	

less	restrictive	schedule);	Washington	v.	Sessions,	17	Civ.	5625		(AKH),	2018	U.S.	

Dist.	LEXIS	30586,	at	*5-7	(S.D.N.Y.	Feb.	26,	2018)	(summarizing	the	procedure	

for	 petitioning	 for	 reclassification	 of	 a	 drug,	 including	 judicial	 review	 of	 the	

determination,	 and	 recent	 attempts	 at	 rescheduling	 the	 classification	 of	

marijuana);	Denial	of	Petition	to	Initiate	Proceedings	to	Reschedule	Marijuana,	

76	Fed.	Reg.	40,551,	40,551-40,589	(July	8,	2011).		

        [¶15]		Because	marijuana	is	a	Schedule	I	substance,	the	CSA	makes	it	a	

crime	 to	 knowingly	 or	 intentionally	 “manufacture,	 distribute,	 or	 dispense,	 or	

possess	 with	 intent	 to	 manufacture,	 distribute,	 or	 dispense”	 marijuana,	

21	U.S.C.S.	§	841(a)(1),	as	well	as	to	“knowingly	or	intentionally	.	.	.	possess	a	

controlled	 substance,”	 id.	 §	 844(a). 5 		 Further,	 and	 important	 to	 the	 question	


   5 		 These	 prohibitions	 are	 subject	 to	 one	 exception,	 namely,	 the	 use	 of	 marijuana	 in	 research	

projects	 approved	 by	 the	 government—a	 circumstance	 not	present	 here.	 	 See	 21	U.S.C.S.	 §	 823(f)	
(LEXIS	through	Pub.	L.	No.	115-181);	United	States	v.	Oakland	Cannabis	Buyers’	Coop.,	532	U.S.	483,	
490	 (2001)	 (“For	 marijuana	 (and	 other	 drugs	 that	 have	 been	 classified	 as	 ‘schedule	 I’	 controlled	
                                                                                                                11	

presented	 here,	 a	 federal	 prosecution	 can	 be	 directed	 against	 a	 “principal,”	

which	is	defined	as	any	individual	who	“commits	an	offense	against	the	United	

States	or	aids,	abets,	counsels,	commands,	induces	or	procures	its	commission,”	

18	 U.S.C.S.	 §	 2(a)	 (LEXIS	 through	 Pub.	 L.	 No.	 115-181)	 (emphasis	 added).		

Section	 2	 “reflects	 a	 centuries-old	 view	 of	 culpability:	 that	 a	 person	 may	 be	


substances),	there	is	but	one	express	exception,	and	it	is	available	only	for	Government-approved	
research	projects,	[section]	823(f).”).		

    We	 note	 that	 section	 844(a)	 of	 the	 CSA	 creates	 another	 exception	 to	 criminal	 liability	 for	
possession	 of	 scheduled	 drugs,	 but	 that	 exception	 is	 inapplicable	 to	 marijuana.	 	 Pursuant	 to	 that	
exception,	possession	of	a	controlled	substance	is	permitted	if	it	“was	obtained	directly,	or	pursuant	
to	a	valid	prescription	or	order,	from	a	practitioner,	while	acting	in	the	course	of	[that	practitioner’s]	
professional	practice.”		21	U.S.C.S.	§	844(a)	(LEXIS	through	Pub.	L.	No.	115-181);	see	also	id.	§	802(21)	
(LEXIS	through	Pub.	L.	No.	115-181)	(defining	“practitioner”).		This	exception	does	not	extend	to	the	
possession	 of	 marijuana,	 however,	 because,	 by	 categorizing	 it	 as	 a	 Schedule	 I	 drug,	 Congress	 has	
determined	that	marijuana	has	“no	currently	accepted	medical	use	in	treatment”	and	that	there	is	“a	
lack	 of	 accepted	 safety	 for	 use	 of	 the	 drug	 or	 other	 substance	 under	 medical	 supervision.”	 	 Id.	
§	812(b)(1)(B)-(C)	(LEXIS	 through	 Pub.	 L.	 No.	 115-181);	 see	 also	 Oakland	 Cannabis	 Buyers’	 Coop.,	
532	U.S.	at	491	(stating	that,	as	designated	in	the	CSA,	“marijuana	has	‘no	currently	accepted	medical	
use’	 at	 all”	 (quoting	 21	 U.S.C.S.	 §	 812	 (LEXIS	 through	 Pub.	 L.	 No.	 115-181)));	 see	 also	 Gonzales	 v.	
Oregon,	546	U.S.	243,	269	(2006)	(stating	that	“Congress’	express	determination	that	marijuana	had	
no	accepted	medical	use	foreclosed	any	argument	about	statutory	coverage	of	drugs	available	by	a	
doctor’s	 prescription”);	 Gonzales	 v.	 Raich,	 545	 U.S.	1,	 24	(2005)	 (“The	 [CSA]	 regulatory	 scheme	 is	
designed	to	foster	the	beneficial	use	of	those	medications	[listed	in	Schedules	II	through	V],	to	prevent	
their	misuse,	and	to	prohibit	entirely	the	possession	or	use	of	substances	listed	in	Schedule	I,	except	
as	a	part	of	a	strictly	controlled	research	project.”);	United	States	v.	Harvey,	794	F.	Supp.	2d	1103,	
1105-07	(S.D.	Cal.	2011)	(concluding	that,	under	California	law,	a	“doctor’s	recommendation”	for	use	
of	medical	marijuana	is	not	a	“valid	prescription	or	order”	under	section	844(a)	of	the	CSA),	aff’d,	659	
F.3d	1272,	1274	(9th	Cir.	2011)	(with	an	“addition	[that]	[w]hat-ever	else	‘order’	might	mean	under	
[section]	844(a)	of	the	[CSA],	it	does	not	include	a	mere	recommendation	from	a	physician	pursuant	
to	 the	 [California]	 Compassionate	 Use	 Act”).	 	 Further,	 the	 lawful	 parameters	 for	 prescribing	
controlled	drugs	or	substances	pursuant	to	the	CSA	do	not	extend	to	Schedule	I	drugs	or	substances.		
See	21	U.S.C.S.	§	829	(LEXIS	through	Pub.	L.	No.	115-181).	

    Thus,	 a	 “written	 certification”	 for	 medical	 marijuana	 authorized	 by	 the	 MMUMA,	 22	 M.R.S.	
§§	2422(16),	2423-B	(2017),	even	when	issued	by	a	medical	“practitioner”	as	defined	by	the	CSA,	21	
U.S.C.S.	§	802(21),	or	a	“medical	provider”	as	defined	by	the	MMUMA,	22	M.R.S.	§	2422(4-C)	(2017),	
is	not	a	“valid	prescription	or	order”	that	would	exempt	the	resulting	marijuana	possession	from	the	
purview	of	the	CSA.	
                                                                                        12	

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	
                                                                                                                 13	

either	way	[the	defendant]	has	knowingly	elected	to	aid	in	the	commission	of	a	

[crime].”	(emphasis	added)).		Therefore,	were	Twin	Rivers	to	comply	with	the	

administrative	 order	 by	 subsidizing	 Bourgoin’s	 use	 of	 medical	 marijuana,	 it	

would	be	engaging	in	conduct	that	meets	all	of	the	elements	of	criminal	aiding	

and	abetting	as	defined	in	section	2(a).6			



   6		Title	18	U.S.C.S.	§	2	(LEXIS	through	Pub.	L.	No.	115-181)	contains	two	separate	bases	on	which	

a	third	party	may	be	held	criminally	liable.		As	discussed	in	the	text,	section	2(a)	imposes	liability	
upon	 a	 person	 who	 aids	 and	 abets	 another	 person	 in	 committing	 the	 predicate	 crime.	 	See	 supra	
¶¶	15-16.		Section	2(b),	in	contrast,	criminalizes	the	conduct	of	any	individual	who	“willfully	causes	
an	act	to	be	done	which	if	directly	performed	by	[that	person]	or	another	would	be	an	offense	against	
the	United	States.”		(Emphasis	added).			

    Although,	in	its	2014	opinion,	the	Rosemond	Court	addressed	the	mens	rea	requirement	for	aiding	
and	abetting	by	citing	generally	to	section	2,	the	statutory	language	that	it	quoted	and	substantively	
analyzed	is	found	specifically	in	section	2(a).		See	Rosemond	v.	United	States,	134	S.	Ct.	1240,	1243-45	
(2014). Section	 2(a)	 does	 not	 require	 “willful[]”	 conduct	 because	 facilitation	 of	 the	 activity	 with	
knowledge	of	its	illegal	nature	is	sufficient	to	form	a	basis	for	criminal	liability.		See	id.	at	1248-50;	
see	 also,	 e.g.,	 United	 States	 v.	 Slatten,	 865	 F.3d	767,	 793	 (D.C.	 Cir.	 2017)	(“To	 establish	 aiding	and	
abetting,	the	government	had	to	prove,	beyond	a	reasonable	doubt,	that	[the	defendant]	intentionally	
‘facilitated	any	 part	 of	 the	 criminal	 venture,’	 with	 enough	 ‘knowledge	 of	 the	 crime	 to	 enable	 [the	
defendant]	 to	 make	 the	 relevant	 legal	 (and	 indeed,	 moral)	 choice’	 to	 opt	 out	 instead.”	 (quoting	
Rosemond,	 134	 S.	 Ct.	 at	1246,	 1249)	(alterations	 omitted));	 United	 States	 v.	 Ford,	 821	 F.3d	63,	 69	
(1st	Cir.	2016)	(“The	words	‘aids	[and]	abets’	.	.	.	all	suggest	that	a	person	violates	section	2	only	if	the	
person	 has	 ‘chosen,	 with	 full	 knowledge,	 to	 participate	 in	 the	 illegal	scheme.’”	 (quoting	 Rosemond,	
134	S.	 Ct.	 at	 1250)	 (emphasis	 added));	 United	 States	 v.	 Encarnación-Ruiz,	 787	 F.3d	 581,	 589-91	
(1st	Cir.	2015)	(discussing	the	applicability	of	Rosemond	to	the	crime	of	aiding	and	abetting	another	
person’s	criminal	conduct	and	stating	that	section	2(a)	contains	no	explicit	mens	rea	requirement	
but	that	courts	have	imposed	a	“knowledge”	element);	United	States	v.	Watson,	Nos.	3:11-CR-079	and	
3:15-CV-044,	2016	U.S.	Dist.	LEXIS	88180,	at	*14	(S.D.	Ohio	July	7,	2016)	(concluding	“that	[section]	
2(a)	describes	an	‘inchoate’	offense,	or,	as	Justice	Kagan	writes	in	Rosemond,	it	codifies	the	‘common-
law	 standards	 for	 accomplice	 liability.’	 	 Section	 2(b),	 in	 contrast,	 does	 describe	 a	 substantive	
offense.”).	 	 Gauged	 by	 the	 language	 of	section	2(a)	 and	 these	 judicial	 explanations	 of	the	 criminal	
exposure	created	by	that	statute,	Twin	Rivers	would	act	in	contravention	of	the	CSA	if	it	were	to	fund	
Bourgoin’s	acquisition	of	medical	marijuana.	
    	
    Justice	Jabar’s	dissenting	opinion	cites	to	section	2	generally	but	draws	its	analysis	on	the	element	
of	willfulness	that	is	found	in	section	2(b)	and	not	in	section	2(a),	and,	on	that	basis,	concludes	that	
Twin	Rivers	would	fall	beyond	that	statute’s	reach.		See	Jabar,	J.,	Dissenting	Opinion	¶¶	40-45.		This	
                                                                                                         14	

        [¶17]	 	 It	 also	 bears	 noting	 that	 aside	 from	 the	 exposure	 to	 a	 federal	

conviction	 itself,	 the	 penalties	 for	 violation	 of	 the	 CSA	 can	 be	 significant.		

Pursuant	to	the	least	severe	penalty	range	for	a	violation	of	section	844—and,	

consequently,	for	aiding	or	abetting	another	person’s	violation	of	section	844—

the	sentence,	at	minimum,	is	a	mandatory	fine	of	$1,000,	and	it	may	also	include	

as	much	as	one	year	of	incarceration,	with	an	even	greater	sentence	if	certain	

aggravating	factors	are	present,	such	as	a	prior	conviction	for	any	drug	offense,	

including	offenses	established	by	the	CSA.		See	21	U.S.C.S.	§	844(a);	see	also	id.	

§	841(b)(1)(A)	(enhancing	a	mandatory	sentence	based	on	prior	convictions	of	

“felony	drug	offenses”	to	a	range	of	at	least	twenty	years	in	prison	to	a	life	term).	

C.      The	CSA	and	Maine’s	Medical	Marijuana	Law	

        [¶18]	 	 This	 description	 of	 the	 scope	 and	 effect	 of	federal	 regulation	 of	

marijuana	brings	us	to	the	point	where	 the	CSA	and	Maine	law	intersect.		As	

relevant	to	this	case,	the	Maine	Medical	Use	of	Marijuana	Act,	22	M.R.S.	§§	2421	




formulation	of	liability	is	entirely	different	from	that	set	out	in	section	2(a),	addressed	in	the	text,	see	
supra	¶¶	15-16,	which	is	based	on	conduct	that	aids	and	abets	another’s	criminal	activity.			
   	
   Therefore,	irrespective	 of	whether	Twin	River’s	subsidization	of	Bourgoin’s	medical	marijuana	
would	expose	Twin	Rivers	to	prosecution	pursuant	to	section	2(b),	that	conduct	would	nonetheless	
aid	and	abet	Bourgoin’s	violation	of	the	CSA	and	render	Twin	Rivers	criminally	liable	pursuant	to	
section	2(a).
                                                                                                 15	

to	2430-B,	allows	a	“qualifying	patient”7	such	as	Bourgoin	to	possess	a	limited	

amount	of	marijuana	for	medical	use.		Id.	§§	2422(9),	2423-A(1)	(authorizing	

the	possession	of	marijuana).		The	written	certification	by	a	medical	provider,	

which	is	effective	for	one	year,	is	based	on	the	professional’s	opinion	that	the	

“qualifying	 patient	 is	 likely	 to	 receive	 therapeutic	 benefit”	 from	 the	 medical	

marijuana	 used	 “to	 treat	 or	 alleviate	 the	 patient’s	 debilitating	 medical	

condition.”		Id.	§	2423-B.			

       [¶19]		These	conflicting	federal	and	state	laws,	and	their	embodiment	of	

competing	policies	and	underlying	conclusions	about	the	efficacy	of	marijuana	

as	a	legitimate	therapeutic	substance,	frame	the	narrow	issue	that	is	central	to	

this	case:	given	this	network	of	statutes,	can	Twin	Rivers	be	required	to	pay	for	

Bourgoin’s	 acquisition	 and	 use	 of	 marijuana—conduct	 that	 is	 proscribed	 by	

federal	law	but	allowed	by	the	State	because	a	MMUMA	certification	had	been	

issued	to	him?	

       [¶20]	 	 Compliance	 with	 both	 is	 an	 impossibility.	 	 Were	 Twin	 Rivers	 to	

comply	with	the	hearing	officer’s	order	and	knowingly	reimburse	Bourgoin	for	

the	 cost	 of	 the	 medical	 marijuana	 as	 permitted	 by	 the	 MMUMA,	 Twin	 Rivers	


   7		A	“qualifying	patient”	is	“a	person	who	has	been	diagnosed	by	a	medical	provider	as	having	a	

debilitating	medical	condition	and	who	possesses	a	valid	written	certification	regarding	medical	use	
of	marijuana	in	accordance	with	section	2423-B.”		22	M.R.S.	§	2422(9)	(2017).			
                                                                                                        16	

would	necessarily	engage	in	conduct	made	criminal	by	the	CSA	because	Twin	

Rivers	 would	 be	 aiding	 and	 abetting	 Bourgoin—in	 his	 purchase,	 possession,	

and	 use	 of	 marijuana—by	 acting	 with	 knowledge	 that	 it	 was	 subsidizing	

Bourgoin’s	purchase	of	marijuana.		See	18	U.S.C.S.	§	2(a);	21	U.S.C.S.	§	844(a);	

Rosemond,	 134	 S.	 Ct.	 at	 1248-50;	 see	 also,	 e.g.,	 United	 States	 v.	 Pinillos-Prieto,	

419	F.3d	61,	63-66	(1st	Cir.	2005)	(describing	a	third-party	intermediary	drug	

transaction	 that	 resulted	 in	 guilty	 verdicts	 for	 aiding	 and	 abetting);	 United	

States	v.	Dingle,	114	F.3d	307,	309-12	(D.C.	Cir.	1997)	(affirming	the	defendant’s	

conviction	for	aiding	and	abetting	illegal	drug	possession).8		Conversely,	if	Twin	

Rivers	 complied	 with	 the	 CSA	 by	 not	 reimbursing	 Bourgoin	 for	 the	 costs	 of	

medical	marijuana,	Twin	Rivers	would	necessarily	violate	the	MMUMA-based	

order	of	the	hearing	officer.			

	          [¶21]	 	 Several	 courts	 have	 held	 that	 a	 consumer’s	 state-law-compliant	

choice	 to	 use	 medical	 marijuana	 does	 not	 trigger	 the	 limited	 preemption	

provision	of	section	903.		See,	e.g.,	Reed-Kaliher	v.	Hoggatt,	347	P.3d	136,	141-42	

(Ariz.	2015);	Ter	Beek	v.	City	of	Wyoming,	846	N.W.2d	531,	537-38	(Mich.	2014);	


    8 		
      Furthermore,	 although	 Justice	 Jabar’s	 dissenting	 opinion,	 see	 Jabar,	 J.,	 Dissenting	 Opinion	
¶¶	45-46,	 draws	 on	 the	 hypothetical	 situation	 posed	 in	 Rosemond,	 where	 a	 third-party	 gun	 store	
owner	knows	but	does	not	care	how	an	illegally	sold	gun	will	be	used,	Twin	Rivers	would	not	be	
“incidentally	facilitat[ing]	a	criminal	venture”	but	rather	would	be	“actively	participat[ing]	in	it”	by	
knowingly	paying	for	Bourgoin’s	purchase	and	possession	of	medical	marijuana.		Rosemond,	134	S.	Ct.	
at	1249	n.8.	
                                                                                      17	

Qualified	 Patients	 Ass’n	 v.	 City	 of	 Anaheim,	 187	 Cal.	 App.	4th	 734,	 757	 (Cal.	

Ct.	App.	2010).		This	is	because	state	laws,	such	as	the	MMUMA,	provide	safe	

harbor	from	state	prosecution,	but	do	not—and	cannot—create	a	“state	right	

to	 commit	 a	 federal	 crime,”	 meaning	 that	 the	 state	 law	 protections	 have	 no	

bearing	on	federal	criminalization	or	exposure	to	federal	prosecution	for	that	

conduct.		Mont.	Caregivers	Ass’n,	LLC,	841	F.	Supp.	2d	at	1150;	see	also	Raich,	

545	U.S.	at	26-27;	Garcia	v.	Tractor	Supply	Co.,	154	F.	Supp.	3d	1225,	1229-30	

(D.N.M.	2016);	Qualified	Patients	Ass’n,	187	Cal.	App.	4th	at	757;	Ter	Beek,	846	

N.W.2d	at	540.		This	case,	however,	does	not	call	for	us	to	determine	whether	

that	legal	analysis	would	protect	the	MMUMA	generally.		The	cases	of	broader	

application,	however,	help	to	reveal	the	critical	point	that,	in	the	case	before	us,	

the	 Appellate	 Division,	 by	 affirming	 an	 order	 issued	 by	 the	 hearing	 officer,	

would	require	Twin	Rivers	to	engage	in	conduct	that	constitutes	a	violation	of	

the	CSA.		

	     [¶22]		The	preemptive	effect	of	the	CSA	on	state	marijuana	laws	has	been	

addressed	 in	 several	 cases	 involving	 circumstances	 similar	 to	 the	 one	

presented	here,	where	a	party—such	as	Twin	Rivers—was	confronted	with	a	

mandate	to	engage	in	conduct	that	would	be	violative	of	the	CSA.		Two	courts,	

for	example,	have	held	that	a	state	law	authorizing	medical	marijuana	use	does	
                                                                                     18	

not	require	an	employer	to	treat	an	employee’s	medical	use	of	marijuana	as	a	

reasonable	 workplace	 accommodation.	 	 See	 Garcia,	 154	 F.	 Supp.	 3d	 at	 1230;	

Emerald	Steel	Fabricators,	Inc.	v.	Bureau	of	Labor	&	Indus.,	230	P.3d	518,	536	

(Or.	 2010).	 	 In	 Garcia,	 an	 employee	 asserted	 that	 his	 termination	 from	

employment	 based	 on	 a	 positive	 test	 for	 cannabis	 metabolites	 was	 a	 form	 of	

unlawful	 discrimination	 because	 he	 was	 using	 medical	 marijuana	 for	 a	

disabling	medical	condition.		154	F.	Supp.	3d	at	1227.		The	court	granted	the	

employer’s	motion	to	dismiss	the	complaint	because,	in	that	context,	the	CSA	

preempted	New	Mexico’s	medical	marijuana	law.		Id.	at	1229-30.		In	part,	the	

court	reasoned	that	“[t]o	affirmatively	require	[the	employer]	to	accommodate	

[the	employee’s]	illegal	drug	use	would	mandate	[the	employer]	to	permit	the	

very	conduct	the	CSA	proscribes.”		Id.	at	1230	(emphasis	added).	

      [¶23]	 	 Similarly,	 the	 Oregon	 Supreme	 Court	 has	 held	 that	 Oregon’s	

medical	 marijuana	 law	 did	 not	 require	 an	 employer	 to	 accommodate	 an	

employee’s	 use	 of	 medical	 marijuana	 pursuant	 to	 the	 principle	 of	 obstacle	

preemption,	a	form	of	conflict	preemption,	see	supra	¶	10,	and	therefore	that	

“[t]o	the	extent	that	[the	state	medical	marijuana	law]	affirmatively	authorizes	

the	use	of	medical	marijuana,	federal	law	preempts	that	subsection,	leaving	it	

without	 effect.”	 	 Emerald	 Steel	 Fabricators,	 Inc.,	 230	 P.3d	 at	 529	 (quotation	
                                                                                        19	

marks	omitted);	see	also	Washburn	v.	Columbia	Forest	Prods.,	Inc.,	134	P.3d	161,	

167-68	(Or.	2006)	(Kistler,	J.,	concurring)	(stating	that	“[t]he	fact	that	the	state	

may	 choose	 to	 exempt	 medical	 marijuana	 users	 from	 the	 reach	 of	 the	 state	

criminal	law	does	not	mean	that	the	state	can	affirmatively	require	employers	

to	accommodate	what	federal	law	specifically	prohibits”).	

       [¶24]	 	 As	 these	 cases	 demonstrate,	 a	 person’s	 right	 to	 use	 medical	

marijuana	cannot	be	converted	into	a	sword	that	would	require	another	party,	

such	as	Twin	Rivers,	to	engage	in	conduct	that	would	violate	the	CSA.			

       [¶25]		In	a	third	case	of	relevance,	although	presenting	a	very	different	

factual	 situation,	 the	 Supreme	 Court	 of	 Colorado	 considered	 whether	 the	

Colorado	 medical	 marijuana	 law—which	 is	 now	 part	 of	 that	 state’s	

Constitution,	see	Colo.	Const.	art.	 XVIII,	 §	14—may	be	enforced	in	a	way	that	

would	violate	the	CSA.		Crouse,	388	P.3d	at	40.		The	Colorado	law	required	law	

enforcement	officers	to	return	seized	medical	marijuana	if	the	person	whose	

marijuana	 had	 been	 seized	 was	 later	 acquitted	 of	 the	 underlying	 state	 drug	

charge.		Id.	at	40-41.		The	officers	declined	to	comply	with	that	law	because	they	

claimed	that,	by	doing	so,	they	would	be	distributing	marijuana	in	violation	of	

the	 CSA.	 	 Id.	 at	 41.	 	 The	 court	 held	 that	 “[b]ecause	 compliance	 with	 one	 law	

necessarily	requires	noncompliance	with	the	other,	there	is	a	positive	conflict	
                                                                                                    20	

between	 [the	 state	 constitution]	 and	 the	 CSA	 such	 that	 the	 two	 cannot	

consistently	stand	together.”		Id.	at	42	(quotation	marks	omitted).		Analytically,	

there	 is	 no	 difference	 between	 the	 circumstances	 of	 Crouse	 and	 this	 case:	

Compelling	 an	 employer	 to	 subsidize	 an	 employee’s	 medical	 marijuana	 will	

require	 the	 employer	 to	 commit	 a	 federal	 crime—aiding	 or	 abetting	 the	

distribution	 and	 possession	 of	 marijuana,	 see	 18	 U.S.C.S.	 §	 2(a);	 21	 U.S.C.S.	

§	844(a)—just	as	Colorado	law	would	have	required	law	enforcement	officers	

to	distribute	drugs	in	violation	of	the	CSA.	

       [¶26]		In	affirming	the	hearing	officer’s	decision,	the	Appellate	Division9	

explicitly	 relied	 on	 the	 Department	 of	 Justice’s	 2009	 “Ogden	 Memo,”	 which	

assigned	low	priority	to	the	prosecution	of	medical-marijuana-based	violations	

of	federal	drug	laws.		David	W.	Ogden,	Deputy	Att’y	Gen.,	U.S.	Dep’t	of	Justice,	

Memorandum	 for	 Selected	 United	 States	 Attorneys:	 Investigations	 and	

Prosecutions	in	States	Authorizing	the	Medical	Use	of	Marijuana	1-2	(Oct.	19,	

2009);	 see	 also	 Noll	 v.	 Lepage	 Bakeries,	 Inc.,	 Me.	 W.C.B.	 No.	 16-25,	 ¶¶	 14-15	

(App.	Div.	2016).		Any	reliance	on	this	internal	departmental	policy,	however,	




   9		In	its	preemption	analysis	set	out	in	the	decision	it	issued	in	this	case,	the	Appellate	Division	

incorporated	a	discussion	found	in	a	decision	issued	the	same	day	in	a	different	case,	Noll	v.	Lepage	
Bakeries,	Inc.,	Me.	W.C.B.	No.	16-25,	¶¶	11-15	(App.	Div.	2016).		We	therefore	address	the	Board’s	
reasoning	as	described	in	the	latter	case.		
                                                                                                         21	

is	entirely	misplaced.		Such	a	policy	is	transitory,	as	is	irrefutably	demonstrated	

by	its	recent	revocation	by	the	current	administration.10			

        [¶27]		Even	more	significantly,	the	Ogden	Memo	itself	made	clear	that	it	

was	 directed	 only	 to	 the	 question	 of	 enforcement	 of	 laws	 but	 did	 nothing	 to	

challenge	 their	 existence.	 	 David	 W.	 Ogden,	 Deputy	 Att’y	 Gen.,	 U.S.	 Dep’t	 of	

Justice,	Memorandum	for	Selected	United	States	Attorneys:	Investigations	and	

Prosecutions	in	States	Authorizing	the	Medical	Use	of	Marijuana	1;	see	United	

States	v.	Hicks,	722	F.	Supp.	2d	829,	833-34	(E.D.	Mich.	2010)	(addressing	the	

DOJ	 memoranda	 and	 concluding	 that	 the	 “[DOJ]’s	 discretionary	 decision	 to	

direct	its	resources	elsewhere	does	not	mean	that	the	federal	government	now	

lacks	the	power	to	prosecute	those	who	possess	marijuana”).		In	fact,	the	Ogden	

Memo	expressly	states	that	it	 merely	 provided	“guidance	regarding	resource	




    10		That	federal	policy	change	occurred	in	early	2018,	when	the	United	States	Attorney	General	

issued	 a	 memorandum	 declaring	 that	 “previous	 nationwide	 guidance	 specific	 to	 marijuana	
enforcement	is	unnecessary	and	is	rescinded,	effective	immediately.”		Jefferson	B.	Sessions	III,	Att’y	
Gen.,	 U.S.	 Dep’t	 of	 Justice,	 Memorandum	 for	 All	 United	 States	 Attorneys:	 Marijuana	 Enforcement	
(Jan.	4,	2018).		This	rescinded	prosecutorial	policies	that	had	not	included	medical	marijuana	among	
its	enforcement	priorities.		See	James	M.	Cole,	Deputy	Att’y	Gen.,	U.S.	Dep’t	of	Justice,	Memorandum	
for	All	United	States	Attorneys:	Guidance	Regarding	Marijuana	Enforcement	(Aug.	29,	2013);	James	
M.	Cole,	Deputy	Att’y	Gen.,	U.S.	Dep’t	of	Justice,	Memorandum	for	United	States	Attorneys:	Guidance	
Regarding	the	Ogden	Memo	in	Jurisdictions	Seeking	to	Authorize	Marijuana	for	Medical	Use	(June	29,	
2011);	 David	 W.	 Ogden,	 Deputy	Att’y	 Gen.,	 U.S.	 Dep’t	 of	 Justice,	 Memorandum	 for	 Selected	 United	
States	Attorneys:	Investigations	and	Prosecutions	in	States	Authorizing	the	Medical	Use	of	Marijuana	
1-2	(Oct.	19,	2009)	(stating	that	the	“pursuit	of	[the	Department’s]	priorities	should	not	focus	federal	
resources	in	.	.	.	States	on	individuals	whose	actions	are	in	clear	and	unambiguous	compliance	with	
existing	state	laws	providing	for	the	medical	use	of	marijuana”).	
                                                                                                         22	

allocation	 [and]	 does	 not	 ‘legalize’	 marijuana	 or	 provide	 a	 legal	 defense	 to	 a	

violation	of	federal	law.	.	.	.		Nor	does	clear	and	unambiguous	compliance	with	

state	law	.	.	.	create	a	legal	defense	to	a	violation	of	the	[CSA].”		David	W.	Ogden,	

Deputy	Att’y	Gen.,	U.S.	Dep’t	of	Justice,	Memorandum	for	Selected	United	States	

Attorneys:	 Investigations	 and	 Prosecutions	 in	 States	 Authorizing	 the	 Medical	

Use	 of	 Marijuana	 2;	 see	 also	 Mont.	 Caregivers	 Ass’n,	 LLC,	 841	 F.	Supp.	2d	 at	

1148-49	(“A	reasonable	person,	having	read	the	entirety	of	the	Ogden	Memo,	

could	not	conclude	that	the	federal	government	was	somehow	authorizing	the	

production	 and	 consumption	 of	 marijuana	 for	 medical	 purposes.	 	 Any	

suggestion	to	the	contrary	defies	the	plain	language	of	the	Memo.”).		Therefore,	

even	if	the	policy	expressed	in	the	Ogden	Memo	were	alive	today,	it	could	not	

weaken	the	conclusion	that	there	is	a	positive	conflict	between	the	CSA	and	the	

MMUMA	as	applied	here.			

        [¶28]		Most	importantly,	however,	the	magnitude	of	the	risk	of	criminal	

prosecution	is	immaterial	in	this	case.		Prosecuted	or	not,	the	fact	remains	that	

Twin	Rivers	would	be	forced	to	commit	a	federal	crime	if	it	complied	with	the	

directive	of	the	Workers’	Compensation	Board.11		See	Skinner	v.	Ry.	Labor	Execs.’	


    11		The	Board	also	relied	on	two	decisions	issued	by	the	New	Mexico	intermediate	appeals	court	

in	 cases	 that	 raised	 the	 type	 of	 issue	 presented	 here,	 namely,	 whether	 the	 New	 Mexico	 Workers’	
Compensation	Act	required	an	employer	to	reimburse	an	eligible	employee	for	the	cost	of	medical	
marijuana	that	the	employee	was	permitted	to	use	pursuant	to	New	Mexico’s	medical	marijuana	act.		
                                                                                                              23	

Ass’n,	 489	 U.S.	 602,	 651	 (1989)	 (Marshall,	 J.,	 dissenting)	 (“The	 absence	 of	

prosecutions	 to	 date	 .	 .	 .	 hardly	 proves	 that	 prosecutors	 will	 not	 avail	

themselves	[of	the	applicable	law]	in	the	future.”).			

                                            III.		CONCLUSION	

        [¶29]		Through	its	enactment	of	the	MMUMA,	the	Maine	Legislature	has	

exempted	 qualifying	 patients	 and	 other	 specified	 individuals	 from	 state	

prosecution	that	otherwise	could	arise	from	the	medical	use	of	marijuana.		The	

Legislature,	 however,	 does	 not	 have	 the	 power	 to	 change	 or	 restrict	 the	

application	of	federal	law	that	positively	conflicts	with	state	law.		See	U.S.	Const.	

art.	VI,	cl.	2.		So	long	as	 marijuana	remains	a	Schedule	I	substance	under	the	

CSA,	 see	 21	 U.S.C.S.	 §	 812(c)(Sched.	 I)(c)(10),	 an	 employer	 that	 is	 ordered	 to	

compensate	 an	 employee	 for	 medical	 marijuana	 costs	 is	 thereby	 required	 to	

commit	a	federal	crime	defined	by	the	CSA.		See	18	U.S.C.S.	§	2(a);	21	U.S.C.S.	

§	844(a).		This	creates	a	positive	conflict	between	the	CSA	and	this	application	




See	 Lewis	 v.	 Am.	 Gen.	 Media,	 355	 P.3d	 850	 (N.M.	 Ct.	 App.	 2015);	 Vialpando	 v.	 Ben’s	 Auto	 Servs.,	
331	P.3d	975	 (N.M.	 Ct.	 App.	 2014).	 	 In	 the	 earlier	 of	 those	 cases	 the	 court	 declined	 to	 reach	 the	
question	of	federal	preemption,	concluding	in	effect	that	the	employer	had	not	preserved	the	issue.		
Vialpando,	331	P.3d	at	979-80.		In	the	second	case,	the	court,	relying	in	part	on	Vialpando—an	opinion	
that	 did	 not	 reach	 the	 merits	 of	 the	 issue—rejected	 the	 contention	 that	 the	 CSA	 trumped	 any	
requirement	that	the	employer	subsidize	the	cost	of	medical	marijuana	because,	the	court	reasoned,	
the	DOJ	enforcement	memos	rendered	the	prospect	of	prosecution	under	the	CSA	to	be	speculative.		
Lewis,	355	P.3d	at	858-59.		To	the	limited	extent	these	cases	address	the	merits	of	the	preemption	
issue,	the	analysis	is	less	than	compelling,	and	we	decline	to	follow	their	lead.			
                                                                                         24	

    of	 the	 MMUMA.	 	 See	 21	U.S.C.S.	 §	 903.	 	 As	 invoked	 against	 Twin	 Rivers,	 the	

    MMUMA	 requires	 what	 federal	 law	 forbids,	 and	 the	 authority	 ostensibly	

    provided	by	the	Maine	law	is	“without	effect.”		Mut.	Pharm.	Co.,	Inc.	v.	Bartlett,	

    570	U.S.	472,	486-87	(2013)	(quotation	marks	omitted);	Robards,	677	A.2d	at	

    543	(quotation	marks	omitted).			

          [¶30]		Because	the	CSA	preempts	the	MMUMA	when	the	MMUMA	is	used	

    as	the	basis	for	requiring	an	employer	to	reimburse	an	employee	for	the	cost	of	

    medical	marijuana,	the	order	based	on	the	MMUMA	must	yield.		We	therefore	

    vacate	the	decision	of	the	Appellate	Division.	

          The	entry	is:	

                        Judgment	 vacated.	 	 Remanded	 to	 the	 Workers’	
                        Compensation	 Appellate	 Division	 with	
                        instructions	to	vacate	the	decision	of	the	hearing	
                        officer	and	remand	for	denial	of	the	petition	for	
                        payment	of	medical	expenses	and	services.	
	
                                  	      	      	      	     	

                                               	
    JABAR,	J.,	with	whom	ALEXANDER,	J.,	joins,	dissenting.	
    	
         [¶31]	 	 I	 respectfully	 dissent	 because	 I	 do	 not	 believe	 that	 the	 federal	

    Controlled	Substances	Act	(CSA)	preempts	the	Maine	Medical	Use	of	Marijuana	

    Act	(MMUMA)	in	this	case.					
                                                                                          25	

A.	   Preemption	Analysis			

      [¶32]	 	 The	 United	 States	 Supreme	 Court	 has	 recognized	 that	 in	 “all	

pre-emption	 cases,	 and	 particularly	 in	 those	 in	 which	 Congress	 has	

legislated	.	.	.	in	a	field	which	the	States	have	traditionally	occupied,	.	.	.	we	start	

with	the	assumption	that	the	historic	police	powers	of	the	States	were	not	to	be	

superseded	by	the	Federal	Act	unless	that	was	the	clear	and	manifest	purpose	

of	 Congress.”	 	 Wyeth	 v.	 Levine,	 555	 U.S.	 555,	 565	 (2009)	 (quotation	 marks	

omitted).		Central	to	this	initial	assumption	is	the	theoretical	underpinning	that	

our	nation	was	founded	upon:	“federalism	.	.	.	allow[s]	the	States	great	latitude	

under	their	police	 powers	to	legislate	 as	to	the	protection	of	the	lives,	limbs,	

health,	comfort,	and	quiet	of	all	persons.”		Gonzales	v.	Oregon,	546	U.S.	243,	270	

(2006)	 (quotation	 marks	 omitted).	 	 Particularly	 relevant	 to	 this	 case,	 “[t]he	

structure	 and	 operation	 of	 the	 CSA	 presume	 and	 rely	 upon	 a	 functioning	

medical	 profession	 regulated	 under	 the	 States’	 police	 powers.”	 	 Id.	 	 And	 in	

Maine,	we	have	been	clear:		

      In	 cases	 where	 federal	 law	 is	 said	 to	 bar	 state	 action	 in	 fields	 of	
      traditional	 state	 regulation,	 such	 as	 workers’	 compensation	
      legislation,	there	is	an	assumption	that	the	historic	police	powers	
      of	the	States	were	not	to	be	superseded	by	the	Federal	Act	unless	
      that	was	the	clear	and	manifest	intent	[of	Congress].			
	
                                                                                      26	

Ciampi	 v.	 Hannaford	 Bros.	 Co.,	 681	 A.2d	 4,	 8	 (Me.	 1996)	 (emphasis	 added)	

(quotation	marks	omitted).		“The	case	for	federal	pre-emption	is	particularly	

weak	where	Congress	has	indicated	its	awareness	of	the	operation	of	state	law	

in	 a	 field	 of	 federal	 interest,	 and	 has	 nonetheless	 decided	 to	 stand	 by	 both	

concepts	and	to	tolerate	whatever	tension	there	is	between	them.”		Bonito	Boats,	

Inc.	 v.	 Thunder	 Craft	 Boats,	 Inc.,	 489	 U.S.	 141,	 166-67	 (1989)	 (alteration	

omitted)	(quotation	marks	omitted).	

	     [¶33]		In	order	to	determine	whether	the	CSA	preempts	the	MMUMA	here,	

we	must	determine	whether	it	is	the	“clear”	or	“manifest”	purpose	of	Congress	

to	preempt	a	state	workers’	compensation	board	from	ordering	an	employer	to	

reimburse	an	employee	for	valid	medical	expenses	related	to	properly	certified	

medical	 marijuana.	 	 As	 the	 Court	 states,	 the	 CSA	 contains	 the	 following	

provision	regarding	preemption:		

            No	provision	of	this	title	shall	be	construed	as	indicating	an	
      intent	on	the	part	of	the	Congress	to	occupy	the	field	in	which	that	
      provision	operates,	including	criminal	penalties,	to	the	exclusion	of	
      any	State	law	on	the	same	subject	matter	which	would	otherwise	
      be	within	the	authority	of	the	State,	unless	there	is	a	positive	conflict	
      between	that	provision	of	this	title	and	that	State	law	so	that	the	two	
      cannot	consistently	stand	together.		
      	
                                                                                          27	

21	U.S.C.S.	§	903	(LEXIS	through	Pub.	L.	No.	115-181)	(emphasis	added);	Court’s	

Opinion	¶	11.		Our	question	now	becomes	whether	a	“positive	conflict”	exists	

here.			

	      [¶34]	 	 A	 positive	 conflict	 arises	 “when	 compliance	 with	 both	 state	 and	

federal	requirements	is	impossible.”		Robards	v.	Cotton	Mill	Assocs.,	677	A.2d	540,	

544	 (Me.	 1996)	 (emphasis	 added).	 	 In	 the	 words	 of	 Erwin	 Chemerinsky,	 a	

preeminent	scholar	of	constitutional	law,	and	his	co-authors,		

       The	phrase	positive	conflict	.	.	.	so	that	the	two	cannot	consistently	
       stand	 together	 in	 section	 903	 has	 been	 interpreted	 as	 narrowly	
       restricting	 the	 preemptive	 reach	 of	 the	 CSA	 to	 cases	 of	 an	 actual	
       conflict	 with	 federal	 law	 such	 that	 compliance	 with	 both	 federal	
       and	state	regulations	is	a	physical	impossibility.		Justice	Scalia	has	
       written	 that	 the	 plain	 language	 of	 section	 903	 states	 a	
       congressional	 intent	 that	 the	 CSA	 preempt	 only	 state	 laws	 that	
       require	 someone	 to	 engage	 in	 an	 action	 specifically	 forbidden	 by	
       the	 CSA.	 	 As	 a	 California	 appellate	 court	 succinctly	 put	 it,	 mere	
       speculation	about	a	hypothetical	conflict	is	not	the	stuff	of	which	
       preemption	is	made.			
       	
       It	 is	 not	 physically	 impossible	 to	 comply	 with	 both	 the	 CSA	 and	
       state	 marijuana	 laws;	 nothing	 in	 the	 more	 liberal	 state	 laws	
       requires	 anyone	 to	 act	 contrary	 to	 the	 CSA.	 	 Only	 if	 a	 state	 law	
       required	a	citizen	to	possess,	manufacture,	or	distribute	marijuana	
       in	 violation	 of	 federal	 law	 would	 it	 be	 impossible	 for	 a	 citizen	 to	
       comply	with	both	state	and	federal	law.		Similarly,	if	a	state	were	to	
       make	state	officers	the	manufacturers	or	distributors	of	marijuana,	
       it	might	well	be	impossible	for	those	officials	to	comply	with	both	
       state	 and	 federal	 law.	 	 No	 state	 marijuana	 law,	 however,	 has	
       attempted	to	require	state	or	local	officials	to	violate	the	CSA	in	this	
       manner.			
       	
                                                                                     28	

Erwin	 Chemerinsky	 et	 al.,	 Cooperative	 Federalism	 and	 Marijuana	 Regulation,	

62	UCLA	 L.	 Rev.	 74,	 105-06	 (2015)	 (emphases	 added)	 (footnotes	 omitted)	

(quotation	marks	omitted).	

      [¶35]		Turning	to	the	supposedly	conflicting	laws,	the	MMUMA	allows	a	

medical	 provider	 to	 “provide	 a	 written	 certification	 for	 the	 medical	 use	 of	

marijuana”	if	a	“qualifying	patient	is	likely	to	receive	therapeutic	benefit”	from	

its	 use	 “to	 treat	 or	 alleviate	 the	 patient’s	 debilitating	 medical	 condition.”		

22	M.R.S.	 §	2423-B	 (2017).	 	 Pursuant	 to	 the	 CSA,	 on	 the	 other	 hand,	 it	 is	

“unlawful	 for	 any	 person	 knowingly	 or	 intentionally	 .	 .	 .	 to	 manufacture,	

distribute,	 or	 dispense,	 or	 possess	 with	 intent	 to	 manufacture,	 distribute,	 or	

dispense”	marijuana.		21	U.S.C.S.	§	841(a)	(LEXIS	through	Pub.	L.	No.	115-181).		

The	CSA	also	makes	it	unlawful	to	knowingly	or	intentionally	possess	marijuana.		

Id.	§	844(a)	(LEXIS	through	Pub.	L.	No.	115-181).			

      [¶36]	 	 Here,	 there	 is	 no	 positive	 conflict	 between	 the	 CSA	 and	 the	

MMUMA	 because	 there	 is	 no	 state	 law	 that	 requires	 the	 employer—or	 any	

person	or	entity—to	possess,	manufacture,	or	distribute	 marijuana.		In	other	

words,	compliance	with	both	the	federal	law	and	the	Workers’	Compensation	

Board	(WCB)	order	is	possible:	reimbursement	does	not	require	the	employer	

to	physically	manufacture,	distribute,	dispense,	or	possess	marijuana,	and,	as	a	
                                                                                   29	

result,	no	 physical	impossibility	 exists	between	the	federal	law	 and	the	 WCB	

order	in	this	case.		Adopting	Chemerinsky’s	analysis	of	section	903	of	the	CSA,	

because	there	is	no	physical	impossibility	here,	and	because	Congress	has	not	

expressed	 a	 clear	 and	 manifest	 preemptive	 intent	 regarding	 state	 workers’	

compensation	 boards	 and	 reimbursement	 for	 state-law	 compliant	 medical	

marijuana	use,	see	Ciampi,	681	A.2d	at	8,	no	positive	conflict	exists.			

      [¶37]		The	employer	and	the	Court	point	to	the	Colorado	case	of	People	v.	

Crouse	to	support	the	argument	that	reimbursement	creates	a	positive	conflict.		

388	P.3d	39	(Colo.	2017);	Court’s	Opinion	¶	25.		That	case,	however,	serves	to	

highlight	the	exact	reason	that	no	positive	conflict	exists	in	Bourgoin’s	case.		In	

Crouse,	 the	 Colorado	 Supreme	 Court	 held	 that	 there	 was	 a	 positive	 conflict	

between	 the	 CSA	 and	 its	 constitution—its	 state	 law—that	 required	 police	

officers	to	physically	distribute	seized	medical	marijuana	to	individuals	who	had	

been	charged	and	acquitted	of	the	crime	that	led	to	the	seizure.		Id.	at	40.		The	

conflict	 existed	 because	 of	 the	 actual	 physical	 impossibility	 that	 existed	

between	 the	 Colorado	 state	 law	 and	 the	 CSA:	 the	 officers	 were—literally—

required	to	physically	distribute	the	marijuana,	and	the	CSA	makes	distribution	

unlawful.		Id.	at	42;	21	U.S.C.S.	§	841(a).			
                                                                                     30	

      [¶38]		This	case	is	unlike	People	v.	Crouse.		There	is	a	difference	in	both	

nature	and	degree	between	following	a	WCB	order	to	reimburse	a	worker	for	

medical	treatment	authorized	by	a	physician	and	approved	by	the	WCB	and	a	

state	law	that	requires	police	officers	to	physically	distribute	marijuana.		The	

key	distinction	is	that	the	police	officers’	actions	in	Crouse	fit	within	an	actual,	

proscribed	activity	specifically	defined	by	the	CSA.		See	Crouse,	388	P.3d	at	41.		

Because	 the	 officers	 would	 be	 required	 to	 “deliver,”	 meaning	 engage	 in	 “the	

actual,	constructive,	or	attempted	transfer	of	a	controlled	substance,”	there	was	

a	 physical	 impossibility	 between	 the	 state	 law	 and	 the	 CSA.	 	 See	 id.	 at	 42	

(quotation	marks	omitted);	see	also	21	U.S.C.S.	§	802(8),	(11)	(LEXIS	through	

Pub.	 L.	 No.	 115-181).	 	 Here,	 unlike	 in	 Crouse,	 the	 employer’s	 reimbursement	

does	not	fall	into	any	category	of	defined	or	proscribed	activity	under	the	CSA.		

Because	the	employer	is	not	required	to	physically	engage	in	activity	that	the	

CSA	proscribes,	there	is	no	positive	conflict	in	this	case.			

B.	   Aiding	and	Abetting		

      [¶39]	 	 The	 Court’s	 primary	 legal	 theory—that	 because	 the	 employer	

would	 be	 aiding	 and	 abetting	 Bourgoin’s	 possession,	 the	 CSA	 preempts	 the	

MMUMA	here—is	unpersuasive	because	the	government	would	not	be	able	to	

prove	that	the	employer	would	be	acting	with	the	specific	intent	necessary	to	
                                                                                        31	

establish	the	requisite	mens	rea	element	of	the	offense	of	aiding	and	abetting.		

See	18	U.S.C.S.	§	2	(LEXIS	through	Pub.	 L.	No.	115-181).		 Further,	the	Court’s	

analysis	on	aiding	and	abetting	is	speculative	because	it	is	not	specific	or	certain	

enough	to	show	that	there	is	a	positive	conflict	in	this	case	such	that	the	Court	

can	conclude	that	preemption	here	is	the	“manifest”	purpose	of	Congress.		See	

Wyeth,	 555	 U.S.	 at	 565.	 	 At	 most,	 whether	 the	 government	 would	 be	 able	 to	

prove	the	mens	rea	element	is	hypothetical,	and	hypotheticals	do	not	give	rise	

to	preemption.		See,	e.g.,	Exxon	Corp.	v.	Governor	of	Maryland,	437	U.S.	117,	131	

(1978);	 see	 also	 Rice	 v.	 Norman	 Williams	 Co.,	 458	U.S.	 654,	 659	 (1982)	 (“The	

existence	 of	 a	 hypothetical	 or	 potential	 conflict	 is	 insufficient	 to	 warrant	 the	

pre-emption	of	the	state	statute.		A	state	regulatory	scheme	is	not	preempted	

by	 the	 federal	 .	.	.	 laws	 simply	 because	 in	 a	 hypothetical	 situation	 a	 private	

party’s	 compliance	 with	 the	 statute	 might	 cause	 him	 to	 violate	 the	 [federal]	

laws.”).			

       [¶40]	 	 A	 person	 is	 punishable	 as	 a	 principal	 under	 federal	 law	 if	 that	

person	 “aids,	 abets,	 counsels,	 commands,	 induces	 or	 procures	 [a	 crime’s]	

commission”	or	“willfully	causes	an	act	to	be	done	which	if	directly	performed	

by	 [that	 person]	 or	 another	 would	 be	 an	 offense	 against	 the	 United	 States.”		

18	U.S.C.S.	 §	2.	 	 In	 1938,	 Judge	 Learned	 Hand	 set	 forth	 a	 definition	 of	 the	
                                                                                       32	

necessary	mens	rea	for	all	aiding	and	abetting	offenses,	stating	that	in	order	to	

be	guilty	of	aiding	and	abetting,	it	is	necessary	that	the	alleged	aider	or	abettor	

“participate	in	[the	venture]	as	in	something	that	he	wishes	to	bring	about,	that	

he	seek	by	his	action	to	make	it	succeed.”		United	States	v.	Peoni,	100	F.2d	401,	

402	 (2d	 Cir.	 1938)	 (emphasis	 added).	 	 About	 a	 decade	 later,	 in	 Nye	 &	 Nissen	

v.	United	 States,	 the	 United	 States	 Supreme	 Court	 quoted	 Judge	 Hand’s	

formulation,	 affirming	 this	 theory	 of	 mens	 rea	 for	 the	 offense	 of	 aiding	 and	

abetting.		See	336	U.S.	613,	618-19	(1949).			

      [¶41]		Since	Nye	&	Nissen,	federal	courts	have	continued	to	hold	that	the	

accomplice	 must	wish	or	 desire	to	bring	about	the	success	of	the	 principal	 in	

committing	the	underlying	substantive	offense	in	order	to	be	punishable	as	a	

principal.		See	United	States	v.	Zafiro,	945	F.2d	881,	887	(7th	Cir.	1991)	(“To	be	

proved	guilty	of	aiding	and	abetting,	.	.	.	the	defendant	[must	have]	desired	the	

illegal	 activity	 to	 succeed.”);	 United	 States	 v.	 Poston,	 902	 F.2d	 90,	 93	 (D.C.	

Cir.	1990)	 (quoting	 Judge	 Hand’s	 formulation);	 United	 States	 v.	 Indelicato,	

611	F.2d	376,	385	(1st	Cir.	1979)	(“To	sustain	a	conviction	on	the	aiding	and	

abetting	.	.	.	counts,	the	government	had	to	prove	beyond	a	reasonable	doubt	

that	 appellant	 willfully	 associated	 himself	 in	 some	 way	 with	 the	 criminal	

venture	and	willfully	participated	in	it	as	he	would	in	something	he	wished	to	
                                                                                             33	

bring	 about.”);	 United	 States	 v.	 Newman,	 490	 F.2d	 139,	 143	 (3d	 Cir.	 1974)	

(“[T]he	government	must	prove	beyond	a	reasonable	doubt	that	the	defendant	

participated	 in	 a	 substantive	 crime	 with	 the	 desire	 that	 the	 crime	 be	

accomplished.”).			

       [¶42]		In	other	words,	the	crime	of	aiding	and	abetting	is	a	specific	intent	

crime.		See	United	States	v.	Nacotee,	159	F.3d	1073,	1076	(7th	Cir.	1998)	(“To	be	

liable	under	an	aiding	and	abetting	theory	.	.	.	a	defendant	must	have	had	the	

specific	intent	to	aid	in	the	commission	of	the	crime	in	doing	whatever	she	did	

to	 facilitate	 its	 commission.”);	 Bosco	 v.	 Serhant,	 836	 F.2d	 271,	 279	 (7th	 Cir.	

1987)	(“Aiding	and	abetting	in	the	criminal	law	requires	not	only	knowledge	of	

the	 principal’s	 objective	 but	 a	 desire	 to	 help	 him	 attain	 it.”).	 	 In	 Zafiro,	 Judge	

Posner	explained	further,	

       To	 be	 proved	 guilty	 of	 aiding	 and	 abetting,	 [it]	 must	 be	
       established[]	 that	 the	 defendant	 desired	 the	 illegal	 activity	 to	
       succeed.		The	purpose	of	this	requirement	is	a	little	mysterious	but	
       we	think	it	is	to	identify,	and	confine	punishment	to,	those	forms	of	
       assistance	the	prevention	of	which	makes	it	more	difficult	to	carry	
       on	the	illegal	activity	assisted.			
	
945	F.2d	at	887.			
      	
      [¶43]		In	distancing	its	own	analysis	and	view	of	liability	for	aiding	and	

abetting	from	that	set	forth	here,	the	Court	distinguishes	between	the	criminal	

liability	element	contained	in,	on	the	one	hand,	18	U.S.C.S.	§	2(a)	 and,	on	the	
                                                                                          34	

other,	 18	U.S.C.S.	 §	 2(b).	 	 Court’s	 Opinion	 ¶	 16	 n.6.	 	 However,	 the	 above	

discussion—of	the	general	principles	underlying	aiding	and	abetting	liability—

is	not	premised	on	that	distinction.		The	Court’s	discussion	fails	to	adequately	

account	for	the	origin	of	the	specific	intent	element	that	both	section	2(a)	and	

2(b)	contain.		It	is	the	common	law—not	the	statutory	law—that	generates	the	

necessary	specific	intent	element	of	section	two	liability	for	aiding	and	abetting,	

and	 Congress’s	 decision	 not	 to	 set	 forth	 the	 requisite	 mental	 state	 in	 section	

2(a)	does	not	mean	that	the	element	is	lacking,	or	that	it	is	anything	other	than	

what	 the	 common	 law	 has	 said	 that	 it	 is.	 	 See,	 e.g.,	 Staples	 v.	 United	 States,	

511	U.S.	600,	605-06	(1994)	(“Indeed,	we	have	noted	that	the	common-law	rule	

requiring	mens	rea	has	been	followed	in	regard	to	statutory	crimes	even	where	

the	statutory	definition	did	not	in	terms	include	it.”)	(quotation	marks	omitted).		

       [¶44]		In	this	context,	the	common	law	establishes	the	requisite	mens	rea	

element	for	all	of	section	two.		See	Nye	&	Nissen,	336	U.S.	at	618-19	(discussing	

the	 intent	 requirement	 for	 offenses	 of	 aiding	 and	 abetting).	 	 Moreover,	 Nye	

&	Nissen,	 decided	 in	 1949,	 predated	 Congress’s	 1951	 amendment	 of	 section	

2(b);	prior	to	the	1951	amendment,	the	word	“willful”	was	absent	from	section	

two.		See	Act	of	Oct.	31,	1951,	ch.	655,	65	Stat.	710,	717	(LEXIS).		That	Congress	

did	 not	 add	 “willful”	 to	 section	 2(a)	 in	 1951	 does	 not	 mean	 that	 Congress	
                                                                                     35	

intended	 to	 eliminate	 the	 specific	 intent	 or	 “willfulness”	 for	 section	

2(a)	liability;	 indeed,	 the	 opposite	 conception	 of	 the	 rationale	 underlying	 the	

omission	is	stronger.		See	Baruch	Weiss,	What	Were	They	Thinking?:	The	Mental	

States	of	the	Aider	and	Abettor	and	the	Causer	Under	Federal	Law,	70	Fordham	

L.	Rev.	1341,	1447	(2002)	(“In	fact,	what	little	information	that	exists	seems	to	

suggest	.	.	.	that	the	word	[willfully]	was	added	by	Congress	[in	 1951]	 not	to	

differentiate	between	the	two	types	of	accomplices,	but	rather	to	confirm	Judge	

Learned	Hand’s	repeated	efforts	to	equate	them.		The	word	was	needed	to	bring	

the	causing	subsection	in	line	with	the	aiding	and	abetting	subsection,	which	

had	 no	 need	 for	 the	 word	 because	 its	 verbs	 –	 aid,	 abet,	 counsel,	 command,	

induce,	 and	 procure	 –	 sufficiently	 convey	 the	 concept	 of	 willful[ness].”)	

(quotation	marks	omitted)).			

      [¶45]	 	 Here,	 the	 employer’s	 compliance	 with	 the	 WCB’s	 order	 to	

reimburse	 Bourgoin’s	state-law-compliant	medical	expenses	is	insufficient	to	

give	rise	to	the	specific	intent	element	of	aiding	and	abetting,	regardless	of	with	

which	prong	under	section	two	the	United	States	may	or	may	not	charge	the	

employer.		The	Court	does	not	analyze	how	the	government	would	be	able	to	

meet	its	burden	to	prove	beyond	a	reasonable	doubt	that	the	employer	itself	

actually	 desired	 or	 wished	 that	 Bourgoin	 be	 successful	 in	 committing	 the	
                                                                                      36	

underlying	 federal	 offense;	 I	 do	 not	 agree	 that	 mere	 knowledge	 is	 sufficient.		

According	to	the	Court,	however,	the	employer	“would	be	aiding	and	abetting	

Bourgoin—in	his	purchase,	possession,	and	use	of	marijuana—by	acting	with	

knowledge	that	it	was	subsidizing	Bourgoin’s	purchase	of	marijuana.”		Court’s	

Opinion	¶	20	(emphasis	added).		To	support	this	proposition,	the	Court	cites	to,	

among	other	sources	of	law,	Rosemond	v.	United	States,	134	S.	Ct.	1240,	1248-50	

(2014).		That	case,	however,	“did	not	deal	.	.	.	with	defendants	who	incidentally	

facilitate	a	criminal	venture	rather	than	actively	participate	in	it.”		Id.	at	1249	

n.8.		The	Rosemond	Court	discussed	the	type	of	activity	that	would	not	give	rise	

to	the	requisite	specific	intent:	“A	hypothetical	case	is	the	owner	of	a	gun	store	

who	sells	a	firearm	to	a	criminal,	knowing	but	not	caring	how	the	gun	will	be	

used.		We	express	no	view	about	what	sort	of	facts,	if	any,	would	suffice	to	show	

that	such	a	third	party	has	the	intent	necessary	to	be	convicted	of	aiding	and	

abetting.”		Id.			

       [¶46]		In	contrast,	the	employer	in	this	case	is	even	further	removed	from	

Bourgoin	 than	 the	 gun	 store	 owner	 is	 from	 the	 “criminal”	 in	 the	 Rosemond	

hypothetical;	 completely	 disinterested	 in	 Bourgoin’s	 use	 or	 possession	 of	

marijuana—and	 indeed	 only	 reimbursing	 him	 for	 his	 medical	 expenses	 as	

ordered	 by	 the	 WCB—the	 employer	 is	 not	 an	 active	 participant	 in	 the	
                                                                                             37	

substantive	 “offense”	 of	 Bourgoin’s	 possession.	 	 Contrary	 to	 the	 Court’s	

conclusion,	I	do	not	agree	that	mere	knowledge	constitutes	active	participation	

in	 the	 commission	 of	 a	 crime,	 the	 effective	 accomplishment	 of	 which	 the	

accomplice	 himself	 or	 herself	 must	 wish	 or	 desire	 to	 bring	 about	 in	 order	 to	

establish	 the	 requisite	 specific	 intent	 that	 the	 offense	 of	 aiding	 and	 abetting	

demands.			

       [¶47]	 	 In	 fact,	 the	 existence	 of	 this	 litigation	 vitiates	 the	 specific	 intent	

element	 that	 the	 government	 would	 have	 to	 prove	 if	 it	 even	 decided	 to	

prosecute	the	employer.		Regardless,	whether	the	government	would	be	able	to	

prove	 the	 requisite	 mens	 rea	 beyond	 a	 reasonable	 doubt	 is	 speculative,	 and	

because	speculative	conflicts	and	hypotheticals	do	not	give	rise	to	preemption,	

see,	 e.g.,	 Exxon	 Corp.,	 437	 U.S.	 at	 131,	 reliance	 on	 the	 doctrine	 of	 aiding	 and	

abetting	to	declare	that	it	was	Congress’s	manifest	purpose	to	preempt	the	WCB	

from	ordering	reimbursement	is	far	too	tenuous.		In	sum,	I	do	not	agree	that	the	

employer	 would	 commit	 an	 offense	 against	 the	 federal	 government	 by	

reimbursing	 Bourgoin	 for	 his	 valid	 medical	 expenses	 pursuant	 to	 the	 WCB	

order,	especially	in	light	of	the	strong	presumption	against	preemption	in	this	

state-controlled	 area	 of	 workers’	 compensation—a	 domain	 that	 has	
                                                                                                         38	

traditionally	been	regulated	under	the	police	powers	of	the	states.		See	Ciampi,	

681	A.2d	at	8.			

        [¶48]	 	 The	 Court	 also	 discusses	 the	 employer’s	 offense	 of	 aiding	 and	

abetting	in	a	vacuum,	devoid	of	any	mention	of	the	substantive	offense,	which	

would	 be	 Bourgoin’s	 state-law-compliant	 use	 and	 possession	 of	 medical	

marijuana.		The	Court	points	to	no	federal	prosecution	of	possession	of	medical	

marijuana,	 let	 alone	 a	 federal	 prosecution	 of	 aiding	 and	 abetting	 a	 singular	

person’s	 simple	 possession	 of	 medical	 marijuana. 12 		 Because	 proof	 of	 the	

existence	 of	 a	 substantive	 crime	 is	 also	an	 element	 of	 an	 aiding	 and	 abetting	

charge,	see	Indelicato,	611	F.2d	at	385,	the	Court	cannot	reach	the	conclusion	

that	 the	 employer	 has	 aided	 or	 abetted	 Bourgoin’s	 use	 or	 possession	 of	

marijuana	 without	 similarly	 declaring	 that	 Bourgoin’s	 use	 or	 possession	 of	

marijuana	constitutes	a	federal	offense.		This	omission	allows	the	Court	to	avoid	

a	 discussion	 that	 would	 necessarily	 be	 required	 to	 include	 the	 preemptive	


   12		Indeed,	Congress	has	repeatedly	enjoined	the	Department	of	Justice	from	expending	any	funds	

to	 prevent	 states	 from	 administering	 their	 state-law-compliant	 medical	 marijuana	 programs.	 	 See	
Consolidated	Appropriations	Act,	2018,	Pub.	L.	No.	115-141,	§	538,	132	Stat.	348	(“None	of	the	funds	
made	available	under	this	Act	to	the	Department	of	Justice	may	be	used	.	.	.	to	prevent	[a	state	or	
territory]	 from	 implementing	 their	 own	 laws	 that	 authorize	 the	 use,	 distribution,	 possession,	 or	
cultivation	 of	 medical	 marijuana.”)	 (LEXIS);	 Consolidated	 Appropriations	 Act,	 2017,	 Pub.	
L.	No.	115-31,	§	537,	131	Stat.	135	(LEXIS)	(similar);	Consolidated	Appropriations	Act,	2016,	Pub.	
L.	No.	 114-113,	 §	 542,	 129	 Stat.	 2242	 (LEXIS)	 (similar);	 Consolidated	 and	 Further	 Continuing	
Appropriations	Act,	2015,	Pub.	L.	No.	113-235,	§	538,	128	Stat.	2130	(LEXIS)	(similar).		To	date,	the	
injunction	remains	in	effect.		See	Consolidated	Appropriations	Act,	2018,	Pub.	L.	No.	115-141,	§	538,	
132	Stat.	348	(making	appropriations	through	the	fiscal	year	ending	September	30,	2018).		
                                                                                                             39	

effect	 of	 the	 CSA	 on	 Bourgoin’s	 state-law-compliant	 use	 and	 possession	 of	

medical	marijuana.		The	Court	uses	the	doctrine	of	aiding	and	abetting	as	the	

vehicle	to	declare	that	the	MMUMA	is	preempted	by	the	CSA	in	this	case,	but	

because	the	government	would	not	be	able	to	prove	that	the	employer	has	the	

specific	intent	to	aid	or	abet	Bourgoin’s	state-law-compliant	use	and	possession	

of	medical	marijuana,	the	Court’s	reliance	on	the	aiding	and	abetting	doctrine	

is	misguided.		The	employer	also	acknowledged	at	oral	argument	that	despite	

the	fact	that	the	first	state	medical	marijuana	law	was	enacted	more	than	two	

decades	ago	in	1996,13	and	the	fact	that	twenty-nine	states,	two	territories,	and	

the	District	of	Columbia	now	have	laws	in	effect	that	allow	for	the	use	of	medical	

marijuana, 14 	it	 could	 not	 point	 to	 any	 federal	 prosecution	 against	 a	 medical	


   13		Cal.	Health	and	Safety	Code	§	11362.5	(Deering	2018)	(LEXIS).	


   14		Alaska,	see	Alaska	Stat.	§§	17.37.010	to	.080	(LEXIS	through	2017);	Arizona,	see	Ariz.	Rev.	Stat.	

Ann.	§§	36-2801	to	-2819	(LEXIS	through	First	Reg.	Sess.	of	53rd	Legis.	(2017)	and	First	Special	Sess.	
of	53rd	Legis.	(2018)	and	Emergency	Legis.	from	2018	2d	Reg.	Sess.,	effective	as	of	May	16,	2018);	
Arkansas,	 see	 Ark.	 Const.	 amend.	 XCVIII	 (LEXIS,	 through	 2018	 Fiscal	 Sess.	 and	 2018	 Second	
Extraordinary	 Sess.);	 California,	 see	 Cal.	 Health	 and	 Safety	 Code	 §§	11362.1	 to	 .9	 (Deering	 2018)	
(LEXIS);	 Colorado,	 see	 Colo.	 Const.	 art.	 XVIII,	 §	 14	 (LEXIS,	 through	 First	 Reg.	 Sess.	 and	 First	
Extraordinary	 Sess.	 of	 71st	 Gen.	 Assembly);	 Connecticut,	 see	 Conn.	 Gen.	 Stat.	 §§	 21a-408	 to	 429	
(LEXIS	 through	 Pub.	 Acts	 18-1	 through	 18-6,	 18-8,	 18-24);	 Delaware,	 see	 Del.	 Code	 Ann.	 tit.	 16,	
§§	4901A	 to	 4928A	 (LEXIS	 through	 81	 Del.	 Laws,	 ch.	 253);	 District	 of	 Columbia,	 see	 D.C.	 Code	
§§	7-1671.01	to	.13	(LEXIS	through	June	4,	2018);	Florida,	see	Fla.	Stat.	§	381.986	(LEXIS	through	
2018	Reg.	Sess.);	Hawaii,	see	Haw.	Rev.	Stat.	Ann.	§§	329-121	to	-131	(LEXIS	through	Act	12	of	2018	
Sess.);	Illinois,	see	410	Ill.	Comp.	Stat.	Ann.	130/1	to	/999	(LEXIS	through	P.A.	100-585	of	the	100th	
Legis.	 Sess.);	 Maine,	 see	 22	 M.R.S.	 §§	 2421	 to	 2430-B	 (2017);	 Maryland,	 see	 Md.	 Code	 Ann.,	 Misc.	
Health	Care	Programs	§§	13-3301	to	-3316	(LEXIS	through	June	1,	2018);	Massachusetts,	see	Mass.	
Ann.	Laws	ch.	94D,	§§	1-3	(LEXIS	through	Act	98	of	the	2018	Legis.	Sess.);	Michigan,	see	Mich.	Comp.	
Laws	Serv.	§§	333.26421	to	.26430	(LEXIS	through	2018	Pub.	Act	170);	Minnesota,	see	Minn.	Stat.	
§§	152.22	to	.37	(LEXIS	through	ch.	118	(excluding	portions	of	chs.	103,	113,	and	115	of	2018	Reg.	
                                                                                                          40	

provider	 for	 authorizing	 a	 patient	 to	 use	 marijuana	 for	 medicinal	 purposes,	

much	 less	 to	 an	 employer	 or	 insurance	 carrier	 providing	 reimbursement	 for	

authorized	 medical	 marijuana	 treatment.	 	 It	 is	 speculative	 to	 anticipate	 a	

federal	prosecution	of	an	employer	who	reimburses	an	employee	for	medical	

expenses	pursuant	to	a	WCB	order	mandating	it	to	do	so.	

        [¶49]		Because	I	would	hold	that	there	is	no	positive	conflict	between	the	

CSA	and	the	 MMUMA	in	this	case,	I	 address	the	remainder	of	the	employer’s	

arguments	on	appeal.			




Sess.	of	Minn.	90th	Legis.));	Montana,	see	Mont.	Code	Ann.	§§	50-46-301	to	-345	(LEXIS	through	2017	
Reg.	Sess.	of	65th	Legis.	and	Nov.	2017	Special	Sess.);	Nevada,	see	Nev.	Rev.	Stat.	Ann.	§§	453A.010	to	
.810	(LEXIS	through	chs.	1-505,	507-560,	562-565,	567,	569,	572-587,	589-608	of	79th	Reg.	Sess.	
(2017));	New	Hampshire,	see	N.H.	Rev.	Stat.	Ann.	§§	126-X:1	to	:11	(LEXIS	through	Act	48	of	2018	
Reg.	Sess.);	New	Jersey,	see	N.J.	Stat.	Ann.	§§	24:6I-1	to	-16	(LEXIS	through	218th	First	Annual	Sess.,	
L.	2018,	c.	15	and	J.R.	5);	New	Mexico,	see	N.M.	Stat.	Ann.	§§	26-2B-1	to	-7	(LEXIS	through	2018	Reg.	
Sess.	 enactments	 of	 53rd	 Legis.);	 New	 York,	 see	 N.Y.	 Pub.	 Health	 Law	 §§	 3360	 to	 3369-e	 (LEXIS	
through	 2018	 chs.	 1-47,	 50-58);	 North	 Dakota,	 see	 N.D.	 Cent.	 Code	 §§	 19-24.1-01	 to	 -40	 (LEXIS	
through	end	of	2017	Reg.	Legis.	Sess.);	Ohio,	see	Ohio	Rev.	Code	Ann.	§§	3796.01	to	.30	(LEXIS	through	
Legis.	passed	by	132nd	Gen.	Assembly	and	filed	with	Sec’y	of	State	through	file	66	(HB	354));	Oregon,	
see	Or.	Rev.	Stat.	§§	475.300	to	.375	(LEXIS	through	emergency	legis.	through	chs.	1-50,	52-59,	62-71,	
73-92	of	2018	Legis.	Sess.);	Pennsylvania,	see	35	Pa.	Cons.	Stat.	§§	10231.101	to	.2110	(LEXIS	through	
2018	Reg.	Sess.	Acts	1-21);	Rhode	Island,	see	21	R.I.	Gen.	Laws	§§	21-28.6-1	to	-17	(LEXIS	through	ch.	
28	of	Jan.	2018	Sess.);	Vermont,	see	Vt.	Stat.	Ann.	tit.	18,	§§	4471	to	4474m	(LEXIS	through	ch.	110	
and	Municipal	Act	15	of	the	2017	Adjourned	Sess.	(2018));	Washington,	see	Wash.	Rev.	Code	Ann.	
§§	69.51A.005	to	.903	(LEXIS	through	2018	ch.	6);	West	Virginia,	see	W.	Va.	Code	Ann.	§§	16A-1-1	to	
-16-1	(LEXIS	through	2018	Reg.	Sess.	Legis.);	Guam,	see	10	Guam	Code	Ann.	§§	122501	to	122529	
(LEXIS	through	P.L.	34-71,	12/15/2017);	Puerto	Rico,	see	9000	PR	Regla	8686	(LEXIS	through	rules	
received	before	January	23,	2018).		
                                                                                        41	

C.	    Private	Health	Insurers		

       [¶50]		The	employer	argues	that	the	plain	language	contained	in	section	

2426(2)(A)	of	the	MMUMA	demonstrates	a	legislative	intent	that	no	third	party	

should	be	required	to	reimburse	a	person	for	their	use	of	medical	marijuana.		

See	 22	 M.R.S.	 §	 2426(2)(A)	 (2017).	 	 We	 review	 issues	 of	 statutory	

interpretation	de	novo.		See	Estate	of	Sullwold	v.	Salvation	Army,	2015	ME	4,	¶	7,	

108	A.3d	1265.			

       [¶51]	 	 “The	 cardinal	 rule	 of	 statutory	 construction	 is	 to	 ascertain	 and	

effectuate	 the	 intent	 of	 the	 legislature.”	 	 State	 v.	 Hudson,	 470	 A.2d	 786,	 788	

(Me.	1984).		“[A]	well-settled	rule	of	statutory	interpretation	states	that	express	

mention	 of	 one	 concept	 implies	 the	 exclusion	 of	 others	 not	 listed.”	 	 Musk	 v.	

Nelson,	647	A.2d	1198,	1201	(Me.	1994);	see	also	Lee	v.	Massie,	447	A.2d	65,	68	

(Me.	1982)	(“[T]he	maxim	[of]	expressio	unius	est	exclusio	alterius	.	.	.	is	regarded	

as	well	recognized	in	Maine	.	.	.	.	”	(quotation	marks	omitted)).		We	only	“look	

beyond	the	plain	meaning	and	consider	other	indicia	of	legislative	intent”	if	“the	

statutory	language	is	ambiguous.”		Damon	v.	S.D.	Warren	Co.,	2010	ME	24,	¶	10,	

990	A.2d	1028.		

       [¶52]		The	MMUMA	states	that	it	“may	not	be	construed	to	require	.	.	.	[a]	

government	medical	assistance	program	or	private	health	insurer	to	reimburse	
                                                                                      42	

a	 person	 for	 costs	 associated	 with	 the	 medical	 use	 of	 marijuana.”	 	 22	 M.R.S.	

§	2426(2)(A).	 	 The	 MMUMA	 does	 not	 define	 “private	 health	 insurer.”	 	 See	

22	M.R.S.	 §	2422	 (2017).	 	 However,	 the	 Workers’	 Compensation	 Act	 (WCA)	

defines	 “employer,”	 “[i]f	 the	 employer	 is	 insured,”	 to	 include	 “the	 insurer,	

self-insurer	or	group	self-insurer.”		39-A	M.R.S.	§	102(12)	(2017).		Under	the	

WCA,	 “insurance	 company”	 is	 separately	 defined	 as	 “any	 casualty	 insurance	

company	or	association	authorized	to	do	business	in	this	State	that	may	issue	

policies”	and	does	not	include	employers.		Id.	§	102(14).		See,	e.g.,	Deabay	v.	St.	

Regis	Paper	Co.,	442	A.2d	963,	964	(Me.	1982)	(distinguishing	between	private	

health	insurers	and	self-insured	employers	under	the	WCA).		

      [¶53]		We	must	first	look	to	the	plain	meaning	of	“private	health	insurer”	

under	the	MMUMA	and	construe	that	language	to	avoid	an	absurd,	inconsistent,	

or	illogical	result.		See	Hanson	v.	S.D.	Warren	Co.,	2010	ME	51,	¶	12,	997	A.2d	

730.		Read	in	conjunction	with	the	entire	sentence	within	which	the	phrase	is	

contained,	there	exist	only	two	categories	of	third	parties	that	should	be	exempt	

from	paying	for	the	use	of	medical	marijuana:	government	medical	assistance	

programs	 or	 private	 health	 insurers.	 	 The	 use	 of	 the	 disjunctive	 word	 “or”	

between	the	two	types	of	third	parties,	and	the	absence	of	any	other	potential	

third-party	payors,	indicates	the	intent	to	set	forth	an	exhaustive	list	of	third	
                                                                                     43	

parties	 exempt	 from	 reimbursement,	 consistent	 with	 the	 statutory	

interpretation	canon	of	expressio	unius.		See	Musk,	647	A.2d	at	1201;	see	also	

Lee,	447	A.2d	at	68.		Employers,	including	those	that	are	self-insured,	are	not	

the	functional	equivalents	to	otherwise	private	health	insurers.		I	would	hold	

that	for	the	purposes	of	WCA	claims,	“private	health	insurers”	is	unambiguous	

as	 used	 in	 the	 MMUMA	 and	 does	 not	 include	 self-insured	 employers	 for	

purposes	of	compensation	under	the	WCA.		

D.	   Reasonable	and	Proper	Treatment		

      [¶54]		The	employer	argues	that	medical	marijuana	is	not	a	reasonable	

and	proper	form	of	treatment	under	the	WCA	because	it	is	illegal	under	the	CSA;	

it	has	not	been	shown	to	have	an	accepted	level	of	safety;	there	is	no	control	

over	the	quality	of	the	substance;	and	there	is	no	control	over	its	billing.		We	

review	 issues	 of	 statutory	 interpretation	 de	 novo.	 	 See	 Estate	 of	 Sullwold,	

2015	ME	4,	¶	7,	108	A.3d	1265.			

      [¶55]		“When	construing	provisions	of	the	Workers’	Compensation	Act,	

our	 purpose	 is	 to	 give	 effect	 to	 the	 Legislature’s	 intent.”	 	 Graves	 v.	

Brockway-Smith	Co.,	2012	ME	128,	¶	9,	55	A.3d	456	(quotation	marks	omitted).		

Pursuant	to	the	WCA,	“[a]n	employee	sustaining	a	personal	injury	arising	out	of	

and	 in	 the	 course	 of	 employment	 .	 .	 .	 is	 entitled	 to	 reasonable	 and	 proper	
                                                                                                                 44	

medical,	 surgical	 and	 hospital	 services,	 nursing,	 medicines,	 and	 mechanical,	

surgical	aids,	as	needed,	paid	for	by	the	employer.”		39-A	M.R.S.	§	206	(2017).			

        [¶56]		 The	 WCA	does	 not	define	what	“reasonable	and	 proper”	 means.		

See	 generally	 39-A	 M.R.S.	 §	 102	 (2017).	 	 However,	 we	 have	 held	 that	 the	

“reasonable	and	proper”	language	contained	within	the	WCA	is	“unambiguous	

on	 its	 face”	 and	 that	 “the	 Legislature	 sought	 to	 provide	 payment	 by	 the	

employer	for	all	reasonable	and	proper	medical	.	.	.	services	.	.	.	required	by	an	

employee	 sustaining	 a	 personal	 injury	 arising	 out	 of	 and	 in	 the	 course	 of	 his	

employment.”15		Cote	v.	Georgia-Pacific	Corp.,	596	A.2d	1004,	1005	(Me.	1991)	

(quotation	marks	omitted).		When	determining	whether	a	 particular	medical	

expense	is	“reasonable	and	proper”	under	the	WCA,	we	have	stated	that	“[e]ach	

case	must	be	decided	according	to	its	own	particular	facts	and	according	to	the	

statute’s	 ultimate	 purpose	 to	 provide	 reasonable	 relief	 from	 the	 effects	 of	 a	

work-related	 injury.”	 	 Brawn	 v.	 Gloria’s	 Country	 Inn,	 1997	ME	 191,	 ¶	 11,	

698	A.2d	 1067	 (emphasis	 added).	 	 See,	 e.g.,	 id.	 ¶¶	 10,	 15	 (holding	 that	 a	

part-time	assistant	and	van	to	accommodate	a	wheelchair	were	reasonable	and	


   15		Before	1992,	the	WCA’s	“reasonable	and	proper”	language	was	contained	in	39	M.R.S.A.	§	52	

(1964),	but	after	the	Act	was	overhauled	in	1992,	the	same	language	became	part	of	section	206;	
although	 the	 language	 moved,	 it	 has	 retained	 the	 same	 meaning.	 	 See	 P.L.	 1991,	 ch.	 885,	 §	 A-8	
(effective	 Oct.	 7,	 1992);	 see	 also	 L.D.	 2464,	 Statement	 of	 Fact,	 Part	 A,	 at	 211	 (115th	 Legis.	 1992)	
(“Section	 206	 reorganizes	 and	 substantially	 enacts	 the	 provisions	 of	 the	 former	 Title	 39,	 section	
52	.	.	.	.”).	
                                                                                    45	

proper	when	medically	necessary	for	that	particular	employee);	Cote,	596	A.2d	

at	1005-06	(holding	that	housekeeping	was	not	reasonable	and	proper	when	it	

had	no	accompanying	medical	component);	 Archer	v.	MDS	Bldg.,	Inc.,	2004	ME	

17,	¶¶	2,	6,	841	A.2d	801	(holding	that	elective	amputation	of	a	toe	to	replace	a	

thumb	lost	in	a	work	injury	was	reasonable	and	proper	because	the	amputation	

was	a	“direct	consequence”	of	reasonable	and	proper	treatment).					

      [¶57]		Turning	to	the	particular	facts	of	Bourgoin’s	own	case,	Bourgoin	

suffers	from	severe	chronic	pain	syndrome,	which	includes	symptoms	of	pain	

and	muscle	spasms	in	his	back,	legs,	arms,	and	chest.		Bourgoin	has	attempted	

many	 treatments	 since	 he	 was	 placed	 on	 total	 disability	 in	 1989,	 including	

nerve	blocks,	aquatherapy,	and	pain	management	through	opioid	medication.		

Eventually,	the	continued	use	of	opioid	medication	resulted	in	severe	negative	

side	effects,	including	narcotic	dependence,	with	dependency	dating	as	far	back	

as	 the	 1990s,	 and	 suicidal	 ideation.	 	 The	 hearing	 officer	 found	 that	 strong	

narcotic	 medications	 “have	 already	 been	 tried	 and	 they	 have	 failed	

Mr.	Bourgoin	 miserably.”	 	 As	 a	 result,	 and	 after	 consultation	 with	 his	

psychiatrist,	 his	 primary	 doctor	 recommended	 ceasing	 narcotic	 medications,	

and	 in	 January	 of	 2012,	 Bourgoin	 obtained	 a	 medical	 marijuana	 certification	

from	a	physician.		Bourgoin	has	used	medical	marijuana	since	his	certification	
                                                                                      46	

to	 successfully	 treat	 his	 chronic	 pain,	 and	 the	 hearing	 officer	 found	 that	

Bourgoin	“has	experienced	significant	benefit	from	medical	marijuana,	and	that	

opioids	have	already	been	shown	to	be	a	failure.”			

      [¶58]		With	no	reference	to	the	“particular	facts”	of	Bourgoin’s	case,	the	

employer	 here	 argues	 that	 medical	 marijuana	 is	 per	 se	 unreasonable	 and	

improper	for	Bourgoin	because	possession	of	marijuana	is	unlawful	under	the	

CSA.		I	would	decline	to	adopt	this	argument	and	would	conclude	that	medical	

marijuana	 was	 reasonable	 and	 proper	 here	 based	 on	 the	 particular	 facts	 of	

Bourgoin’s	own	case,	as	established	by	the	record	before	us.		Specifically,	the	

severity	 and	 chronic	 nature	 of	 his	 pain,	 his	 many	 and	 varied	 attempts	 to	 try	

different	 treatments,	 none	 of	 which	 were	 effective,	 and	 the	 ultimate	

effectiveness	 of	 medical	 marijuana	 for	 his	 particular	 situation,	 show	 that	 the	

medical	use	of	marijuana	was	reasonable	and	proper	in	this	case.			

E.	   Rejection	of	IME’s	Findings			

      [¶59]	 	 The	 employer	 argues	 that	 there	 was	 not	 clear	 and	 convincing	

evidence	to	contradict	the	independent	medical	examiner’s	(IME)	findings,	and	

that	 the	 hearing	 officer’s	 analysis	 was	 flawed	 because	 it	 failed	 to	 consider	
                                                                                                       47	

whether	medical	marijuana	can	ever	be	 reasonable	“given	its	illegality	under	

the	CSA.”			

        [¶60]	 	 A	 hearing	 officer	 must	 adopt	 the	 medical	 findings	 of	 the	 IME	

“unless	there	is	clear	and	convincing	evidence	to	the	contrary	in	the	record	that	

does	not	support	the	medical	findings.”		39-A	M.R.S.	§	312(7)	(2017).		Although	

a	hearing	officer’s	decision	“on	all	questions	of	fact	is	final,”	a	hearing	officer’s	

conclusion	that	an	employee	satisfied	his	or	her	burden	to	prove	by	clear	and	

convincing	evidence	that	the	independent	medical	examiner’s	findings	should	

be	rejected	is	a	conclusion	of	law	that	is	subject	to	appellate	review.		39-A	M.R.S.	

§	318	(2017).16		In	such	a	case,	“we	determine	whether	the	hearing	officer	could	

have	been	reasonably	persuaded	by	the	contrary	medical	evidence	that	it	was	

highly	 probable	 that	 the	 record	 did	 not	 support	 the	 IME’s	 medical	 findings.”		

Sprague	 v.	 Lucas	 Tree	 Experts,	 2008	ME	 162,	 ¶	 24,	 957	 A.2d	 969	 (quotation	

marks	omitted).		

        [¶61]		In	this	case,	the	hearing	officer	found	it	to	be	highly	probable	that	

the	record	did	not	support	the	IME’s	findings.		Specifically,	the	hearing	officer	

was	 persuaded	 by	 the	 testimony	 of	 Dr.	 Sulak	 regarding	 the	 benefits	 of	


   16		Certain	portions	of	the	WCA,	including	39-A	M.R.S.	§	318	(2017),	were	amended	after	the	decree	

in	this	case	was	entered,	see,	e.g.,	P.L.	2015,	ch.	297,	§	13	(effective	Oct.	15,	2015),	though	not	in	any	
way	relevant	to	this	discussion.	
                                                                                         48	

marijuana	 for	 the	 treatment	 of	 long-term,	 chronic	 pain,	 and	 Bourgoin’s	 own	

testimony	regarding	the	effects	of	marijuana	on	his	level	of	pain.		The	hearing	

officer	found	this	evidence	to	be	more	persuasive	than	the	IME’s	findings.		The	

IME	 concluded	 that,	 because	 medical	 marijuana	 had	 no	 currently	 accepted	

medical	use	under	federal	law,	it	was	not	a	reasonable	and	proper	treatment	

for	any	patient,	regardless	of	its	efficacy	in	a	given	circumstance.			

       [¶62]		Because	the	record	contains	(1)	numerous	examples	of	the	ways	

in	 which	 medical	 marijuana	 has	 reduced	 Bourgoin’s	 chronic	 pain	 since	

beginning	the	regimen	of	medical	marijuana	use;	and	(2)	evidence	of	traditional	

opioid	 medication’s	 failure	 to	 reduce	 his	 chronic	 pain,	 I	 would	 hold	 that	 the	

hearing	officer	could	have	been	reasonably	persuaded	by	the	contrary	medical	

evidence,	 and,	 as	 a	 result,	 that	 he	 did	 not	 err	 when	 he	 concluded	 that	 it	 was	

highly	probable	that	the	record	did	not	support	the	IME’s	medical	findings.			

       [¶63]		Accordingly,	I	would	affirm	the	decision	of	the	Appellate	Division.	
                               	       	      	      	      	
                                              	

ALEXANDER,	J.,	dissenting.	


       [¶64]	 	 I	 am	 pleased	 to	 join	 Justice	 Jabar’s	 thoroughly	 researched	 and	

carefully	written	dissenting	opinion.		I	write	separately	because	in	the	extensive	
                                                                                     49	

discussion	 of	 the	 law	 of	 preemption,	 we	 must	 not	 lose	 sight	 of	 the	 injured	

worker	whom	this	opinion	is	really	about.	

      [¶65]	 	 Gaetan	 Bourgoin	 has	 endured	 chronic,	 disabling	 pain	 from	 a	

workplace	 injury	 he	 sustained	 three	 decades	 ago.	 	 The	 result	 of	 the	 Court’s	

opinion	today	is	to	deprive	Bourgoin	of	reimbursement	for	medication	that	has	

finally	given	him	relief	from	his	chronic	pain,	and	to	perhaps	force	him	to	return	

to	the	use	of	opioids	and	other	drugs	that	failed	to	relieve	his	pain	and	may	have	

placed	Bourgoin’s	life	at	risk.	

      [¶66]		The	essential	elements	of	this	appeal	are	that	other	states	allow	

appropriate	medical	personnel	to	prescribe	or	certify	marijuana	to	treat	health	

conditions;	these	states	allow	employers	and	private	insurers	to	reimburse	for	

marijuana	 prescriptions	 or	 certificates;	 and	 the	 certificates	 and	

reimbursements	 are	 technically	 violations	 of	 federal	 law,	 but	 the	 federal	

government	has	not	taken	criminal	or	civil	action	to	prevent	these	certifications	

or	reimbursements	or	at	least	no	such	federal	prosecution	is	indicated	in	the	

record.	

      [¶67]	 	 Based	 on	 the	 status	 of	 the	 law	 in	 2016,	 the	 Appellate	 Division	

approved	the	certificates	and	the	reimbursements.		The	Court’s	opinion	rejects	

the	 Appellate	 Division’s	 findings	 and,	 based	 on	 its	 speculation	 that	 federal	
                                                                               50	

enforcement	practice	might	change,	the	Court	holds	as	a	matter	of	law	that	the	

Appellate	Division	erred	in	approving	the	certificates	and	reimbursements	for	

Mr.	Bourgoin.		Court’s	Opinion	¶¶	26-30.		In	this,	the	Court	is	reaching	too	far,	

speculating	about	the	future	rather	than	looking	at	the	present,	as	was	properly	

addressed	by	the	Appellate	Division.	

         [¶68]		From	that	result,	I	respectfully	dissent.	

	     	     	     	      	    	
	
Anne-Marie	L.	Storey,	Esq.	(orally),	and	John	K.	Hamer,	Esq.,	Rudman	Winchell,	
Bangor,	for	appellants	Twin	Rivers	Paper	Company,	LLC,	and	Sedgwick	Claims	
Management	Services	
	
Norman	G.	Trask,	Esq.	(orally),	Currier	&	Trask,	P.A.,	Presque	Isle,	for	appellee	
Gaetan	H.	Bourgoin	
	
Thomas	E.	Getchell,	Esq.,	Troubh	Heisler,	Portland,	for	amicus	curiae	University	
of	Maine	System	
	
	
Workers	Compensation	Board	Appellate	Division	case	number	15-0022	
FOR	CLERK	REFERENCE	ONLY	
