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UPDATE: Maine Supreme Court Holds State Worker Compensation Law Preempted

Posted by on Thursday, June 28, 2018 in News, Updates.

Last week the Maine Supreme Court issued its decision in Bourgoin v. Twin Rivers. For the full opinion, see here.

I blogged about the case back in October: see Cases to Watch: Bourgoin v. Twin Rivers and Workers’ Compensation. In this post, I’ll briefly describe the court’s recent holding and then provide a few thoughts about the decision.

The facts of the case are straightforward. Bourgoin was an employee of Twin Rivers Paper Company. After a work-related injury left him with chronic back pain, Bourgoin sought medical treatment. Pursuant to the state’s worker compensation law, the Maine Workers’ Compensation Board (WCB) ordered Twin Rivers to pay for the costs of that treatment—which, in this case, happened to be medical marijuana recommended by Bourgoin’s physician under Maine’s medical marijuana law. Twin Rivers objected, citing the fact that marijuana remains illegal under federal law. Although a state appeals court upheld the WCB’s order, the Maine Supreme Court reversed.

The Bourgoin Court found the WCB order was preempted because it forced Twin Rivers to violate federal law—namely, it forced the employer to aid and abet an employee’s possession of marijuana. The order thus created a rare impossibility conflict with federal law. The court explained:

“Compliance with both [the WCB order and federal law] 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 . . . , Twin Rivers would necessarily engage in conduct made criminal by the CSA because Twin Rivers would be aiding and abetting Bourgoin—in his purchase, possession, and use of marijuana—by acting with knowledge that it was subsidizing Bourgoin’s purchase of marijuana. . . . Conversely, if Twin Rivers complied with the CSA by not reimbursing Bourgoin for the costs of medical marijuana, Twin Rivers would necessarily violate the [WCB order].”

Bourgoin (pages 15-16) (emphasis added).

Let me offer two thoughts on the opinion.

First, while the majority reached the correct result, its reasoning is flawed. The dissent highlights the key problem in the majority opinion, a problem I anticipated back in my October post linked above:

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

. . . [F]ederal courts have [held] . . . 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. . . . In other words, the crime of aiding and abetting is a specific intent crime. . . .

. . . 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 underlying federal offense. . . .

. . . [C]ompletely 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 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.”

To put it another way, Twin Rivers wouldn’t necessarily aid and abet Bourgoin’s marijuana possession even if it complied with the WCB order. As the dissent points out, and as discussed in the book on pages 571-577, it is not enough to show that an accomplice knowingly helped a principal commit a crime; the government must also prove that the accomplice wanted the crime to succeed. But as the dissent notes, it’s far from obvious that Twin Rivers wanted to help Bourgoin possess marijuana, given that the employer had to be ordered to reimburse Bourgoin for the drug.

However, the dissent runs into its own problem: if its logic is correct, impossibility conflicts probably should not exist. After all, state orders to violate federal law would always (or almost always) absolve private citizens of liability under federal law. Under the dissent’s reasoning, for example, a state order to Twin Rivers to dump toxic waste into the ocean in violation of federal law—or else pay a steep state fine—would not be preempted by federal law, because the company could probably raise a successful duress defense against any federal enforcement action.

Ultimately, I think the Bourgoin court could have avoided the problem flagged by the dissent simply by reframing the preemption claim. For one thing, the majority could have found that it was the state – rather than the private employer – that would be aiding and abetting Bourgoin’s marijuana possession. I made this suggestion back in my October post:

“[T]he federal government [might not be able to] prosecute the employer for aiding and abetting. (After all, because the state is compelling the employer to do something it otherwise seems unwilling to do, the employer probably lacks the mens rea needed for aiding and abetting liability (such compulsion might also raise the defense of duress). But for purposes of preemption, the focus is on the actions and mindset of the state, not the employer regulated by the state. And the state clearly wants to enable the employee to obtain marijuana.”

Focusing on the mindset of state officials avoids the mens rea issue raised by the dissent, but the result would be the same – i.e., the WCB order would be preempted.

Alternatively, the Bourgoin court could have held that the WCB order created an obstacle conflict with federal law. Under this version of conflict preemption, the court wouldn’t have to find that the WCB order actually forced Twin Rivers to violate federal law, only that the order undermined the purpose of federal law. This is usually a much easier standard to meet. For example, the Bourgoin court could have found that by subsidizing private marijuana use, the WCB order undermined one of the purposes of federal drug law—to curb illicit drug use. However, let me be clear: I’m relieved the court didn’t go this route. Obstacle conflict doctrine is notoriously malleable, and to date, courts and commentators have done a poor job applying that doctrine to state marijuana reforms, for reasons I discuss in this Article and in the book (pages 680-681).

Second, I think the decision will have a limited impact on state marijuana reforms. To be sure, it will set an important precedent for worker compensation rules—it’s the first state supreme court decision on point. But very few other laws raise the sort of impossibility conflict (arguably) posed by worker compensation rules.

The majority cites only two examples. One is a law that requires state police to return marijuana wrongfully seized from private citizens – such a law arguably forces the police to distribute marijuana in violation of federal law, although the story is not quite so simple (as I discuss in the Article above and in this blog post).

The second example is a law that requires private employers to accommodate employee marijuana use away from the job. Although the Bourgoin court rightly suggested that “a person’s right to use medical marijuana cannot be converted into a sword that would require another party . . . to engage in conduct that would violate [federal law]” (page 19), I don’t think other employment laws actually do this. Federal law does not make it a crime to employ drug users. It’s also a stretch to say that an employer aids and abets an employee’s marijuana possession simply by keeping the employee on the payroll. Even if the employer knows that the employee is using her salary to buy marijuana, that doesn’t mean the employer necessarily condones the employee’s drug use. Neither does the state if it bars the employer from firing the employee for such use. For example, the state might bar employment discrimination to prevent employers from using marijuana use as a pretext for terminating employees with serious illnesses.

So while I think the Bourgoin decision’s impact on preemption cases will be limited, the majority could could have done a better job of distinguishing worker compensation laws from other state marijuana reforms.

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