STATE OF MINNESOTA

IN SUPREME COURT

A20-1551

Workers’ Compensation Court of Appeals Anderson, J.
Concurring in part, dissenting in part,
S u s a n K . M u s t a , C h u t i c h , J .

Respondent,

vs. Filed: October 13, 2021
Office of Appellate Courts

Mendota Heights Dental Center
& Hartford Insurance Group,

Relators.

______________________________

Cheri M. Sisk, Thomas D. Mottaz, Mottaz & Sisk Injury Law, Coon Rapids, Minnesota,
for respondent.

William M. Hart, Julia Nierengarten, Meagher & Geer, P.L.L.P., Minneapolis, Minnesota;
and

Kassi Erickson Grove, Law Offices of Stev en G. Piland, Overla nd Park, Kansas, for
relators.

Keith Ellison, Attorney General, Liz Kramer, Solicitor General, Jeffrey K. Boman, Rachel
Bell-Munger, Assistant Attorneys General, Saint Paul, Minnesota, for amicus curiae State
of Minnesota.

Beth A. Butler, Kristine L. Cook, Peterson, Logren & Kilbury, P.A., Roseville, Minnesota,
for amicus curiae Minnesota Defense Lawyers Association.

________________________

1
S Y L L A B U S
1. Because resolving a claim asserting th at a conflict exists between federal law
that prohibits cannabis possession and state la w that requires an employer to pay for an
injured employee’s reasonable and necessary medical treatment would require the Workers
Compensation Court of Appeals to interpret and apply federal law, that court lacks subject
matter jurisdiction to decide the preemption issue presented by that claim.
2. The prohibition in the Controlled Subs tances Act, 21 U.S.C. §§ 801–971, on
the possession of cannabis preempts an or der made under Minnesota’s workers’
compensation law, Minn. Stat. § 176.135, su bd. 1 (2020), that requires an employer to
reimburse an injured employee for the cost of medical cannabis used to treat a work-related
injury.
Reversed.
O P I N I O N
ANDERSON, Justice.
The question presented here is whether the federal Controlled Substances Act
(CSA), 21 U.S.C. §§ 801–971 , which makes the possession of cannabis a federal crime,
preempts provisions of the Minnesota Workers’ Compensation Act that make an employer
liable for an injured employee’s cost of treating a work-related injury. More specifically,
does the statutory requirement for an employer to “furnish any medical . . . treatment,”
reasonably necessary to treat a work-related injury, Minn. Stat. § 176.135, subd. 1 (2020),
conflict with federal law that prohibits th e possession of cannabis when the employer
would be required to pay for the expense of treatment using medical cannabis? If federal
2
law preempts state law in this specific instan ce, then an employer cannot be ordered to
reimburse an injured employee for the cost of medical cannabis used to treat the effects of
a work-related injury.
Respondent Susan Musta was injured while working for her employer, relator
Mendota Heights Dental Center (Mendota Heights). After multiple rounds of medical
intervention were unsuccessful, Musta’s doc tor certified her for participation in
Minnesota’s medical cannabis program. Musta then sought reimbursement for the cost of
the medical cannabis from Mendota Heights, which agrees that medical cannabis is a
reasonable and necessary treatment for Musta’ s chronic pain. Mendota Heights asserted,
however, that the federal prohibition in th e CSA on the possession of cannabis preempts
the requirement under Minnesota’s workers’ compensation laws for an employer to pay for
an injured employee’s medical treatment when that treatment is medical cannabis. The
Workers Compensation Court of Appeals (WCC A) declined to a ddress the preemption
argument, concluding that it did not have the subject matter jurisdiction to do so, and then
upheld the compensation judge’s order requiring Mendota Heights to reimburse Musta for
medical cannabis.
We conclude that the WCCA lacks subj ect matter jurisdiction to determine the
preemption issue presented in this case be cause it requires the interpretation and
application of federal law. We further conc lude that the CSA preempts an order made
under Minn. Stat. § 176.135, subd. 1, that obligates an employer to reimburse an employee
for the cost of medical cannabis because co mpliance with that or der would expose the
employer to criminal liability under federa l law for aiding and abetting Musta’s unlawful
3
possession of cannabis. We therefore reverse the decision of the Workers’ Compensation
Court of Appeals.
FACTS
Musta was employed by Mendota Heights1 as a dental hygienist when she suffered
a work-related neck injury in February 2003. Musta received conservative care, including
chiropractic treatment, medication management, physical therapy, and injection therapy.
She then underwent surgery in November 2003 and August 2006, which provided some
temporary relief. She was ultimately prescribed medication to manage the continuing pain,
including Vicodin and fentanyl. In late 2009, Musta discontinued using narcotics to treat
her pain because of the side effects. At this point, Musta was permanently and totally
disabled.
In April 2019, after she was certified as eligible to participate in the state’s medical
cannabis program, Musta began using medical cannabis, in compliance with the THC
Therapeutic Research Act (THC Act), Minn. Stat. §§ 152.21–.37 (2020), to treat her work-
related injury. She then requested reimburs ement for the cost of that treatment from
Mendota Heights under Minn. Stat. § 176.135, su bd. 1 (2020). In the proceedings before
the compensation judge, the parties stipulated that Musta’s use of medical cannabis
complies with the THC Act and is reasonable, medically necessary, and causally related to
her work injury. Mendota Heights opposed Musta’s request for reimbursement, however,
asserting before the compensa tion judge that paying for so meone to possess cannabis is

1 The insurer for Mendota Heights is rela tor Hartford Insurance Group, and we refer
to relators collectively as “Mendota Heights.”
4
prohibited by federal law, specifically the CSA. Thus, the sole issue before the workers’
compensation judge was whether the CSA preempts the employer reimbursement
requirement in Minnesota’s workers’ compensa tion laws when that reimbursement is for
medical cannabis.
Cannabis is a Schedule I controlled subs tance—the most rest rictive level—and
therefore cannot be lawfully prescribed. 21 U.S.C. § 812(c)(c)(10). Federal law provides
that a Schedule I controlled substance has a high potential for abuse, has no currently
accepted medical use in treatment in the United States, and lacks accepted safety for use of
the substance under medical supervision. 21 U.S.C. § 812(b)(1). The CSA makes it a
federal crime to possess a controlled substance knowingly or intentionally without a valid
prescription. 21 U.S.C. § 844(a).2 Anyone guilty of such an offense may be sentenced up
to one year in prison and fined at least $1,000. Id. And anyone who aids and abets a federal
crime is liable to the same extent as the principal. 18 U.S.C. § 2(a).
The compensation judge declined to resolve the issue of preemption, recommending
instead to the Chief Administra tive Law Judge that the ques tion be certified to us. The
Chief ALJ did so, but we declined to accept th e certified question, stating that “the legal
issue presented by this work ers’ compensation matter is best addressed through the

2 Under Minnesota’s THC Act, a physician does not prescribe medical cannabis for a
patient’s medical condition; rather, the physici an determines whether the patient “suffers
from a qualifying medical condition,” Minn. Stat . § 152.28, subd. 1(a)(1), which if found
allows the patient to apply for enrollment in the medical cannabis program, see Minn. Stat.
§§ 152.27, subd. 3(a)(4), .30(a).
5
decision process established by the Legislature.” Musta v. Mendota Heights Dental Ctr. ,
No. A19-1365, Order at 2 (Minn. filed Oct. 16, 2019).
On remand, the compensation judge then analyzed the preemption issue. The judge
observed that use of medical cannabis is legal under Minnes ota law, and nothing in the
workers’ compensation laws prohibits reimbursement for medical cannabis when used to
treat a work-related injury. Further, the judge noted th at ongoing congressional
appropriations riders prohibit the United Stat es Department of Justice from criminally
prosecuting an act that is compliant w ith a state’s medical cannabis laws. The
compensation judge stated th at a federal prosecution wo uld “prevent Minnesota from
implementing its own laws” regarding medical cannabis use. Thus, the compensation
judge concluded, there was no risk that Me ndota Heights would be criminally prosecuted
under federal law, and therefore no preemptive conflict between federal law and Minnesota
law existed. Mendota Heights was accordin gly required to reimburse Musta for her
medical cannabis expenses.
The Workers’ Compensation Court of Appeals affirmed. Musta v. Mendota Heights
Dental Ctr., No. WC19-6330, 2020 WL 6799288 (M inn. WCCA Nov. 10, 2020). The
WCCA concluded that it lacked subject ma tter jurisdiction over the preemption issue
because it “would need to interpret and apply laws be yond the Worker s’ Compensation
Act and beyond [its] limited jurisdiction.” Id. at *3. Instead, the WCCA believed that the
preemption issue was “best addressed by a court of broader jurisdiction.” Id. Thus, the
court rejected the compensation judge’s analysis on that issu e and struck certain findings
made regarding federal law. But, conclu ding that the legal question—the employer’s
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reimbursement liability—could be resolved based on the stipulated facts and the remaining
findings, the WCCA affirmed the award of reimbursement. Mendota Heights appealed to
us by writ of certiorari.
ANALYSIS
This case presents two issues. First, we must determine whether the WCCA
correctly concluded that it lacks subject matter jurisdiction to decide whether federal law—
the CSA—preempts Minnesota law that require s an employer to reimburse an employee
for treatment of a work-related injury. Se cond, we must determ ine whether the CSA
preempts the requirement in Minnesota law for an employer to reimburse an injured
employee for the cost of medical treatment when the treatment for which payment is sought
is medical cannabis.
I.
We begin with jurisdiction. “The subject matter jurisdiction of the workers’
compensation courts is a question of law,” which we review de novo. Giersdorf v. A & M
Constr., Inc., 820 N.W.2d 16, 20 (Minn. 2012). “Subject matter jurisdiction is the court’s
authority to hear the type of dispute at issue and to grant the type of relief sought.” Seehus
v. Bor-Son Constr., Inc., 783 N.W.2d 144, 147 (Minn. 2010). The WCCA “is a tribunal of
limited jurisdiction, restricted by statute to the construction and application of the Workers’
Compensation Act.”3 Hagen v. Venem, 366 N.W.2d 280, 283 (Minn. 1985); see also Minn.

3 A compensation judge decides questions of fact and law to make “an award or
disallowance of compensation” based on the pleadings. Minn. Stat. § 176.371 (2020); see
also Minn. Stat. § 176.291(a) (2020) (allowing a party to initiate a proceeding by filing a

7
Stat. § 175A.01, subd. 5 (stating that the WC CA has jurisdiction ove r “questions of law
and fact arising under the workers’ compen sation laws of the state”). The WCCA’s
“powers are plenary” in cases arising under the Workers’ Compensation Act, allowing that
court to hear and determine the legal and factual questions presented by a case appealed to
that court. Hagen, 366 N.W.2d at 283.
The WCCA may decide certain questions ancillary to the employee’s compensation
claim, such as determining insurance coverage, Giersdorf, 820 N.W.2d at 20–21; awarding
certain fees and costs, Botler v. Wagner Greenhouses , 754 N.W.2d 665, 668–70 (Minn.
2008); and determining the liability of a guaranty association, Seehus, 783 N.W.2d at
151–52. The WCCA may also look to the laws of other states and federal law “for
instruction” in narrow circumstances. See Sundby v. City of St. Peter , 693 N.W.2d 206,
215–16 (Minn. 2005) (holding that the WCCA could look to the Social Security Act for
instruction because the workers’ compensation provi sion at issue was a means for
coordinating workers’ compensation benefits with the social secu rity system, and the
WCCA “neither construed nor applied federal law”).
The WCCA is not authorized, however, “to consider questions of law arising under
the workers’ compensation stat utes of other states.” Martin v. Morrison Trucking, Inc. ,
803 N.W.2d 365, 369 (Minn. 2011). The WCCA similarly may not “construe Minnesota
statutes other than the Minnesota Act.” Id. And its jurisdiction “does not extend to
interpreting or applying legislation designed specially for the handling of claims outside

petition when “there is a dispute as to a question of law or fact in connection with a claim
for compensation”).
8
the workers’ compensation system.” Sundby, 693 N.W.2d at 215; see also Martin , 803
N.W.2d at 369–70 (distinguishing between the WCCA’s statutory authority to order
reimbursement to a no-fault insurance carrie r and the WCCA’s lack of jurisdiction to
construe statutes other than those governing workers’ compensation claims).
Mendota Heights asserts that this is a ca se “arising under” Minnesota’s workers’
compensation laws, and because the WCCA may hear and determine “all questions of law
and fact” in such cases, the court possessed subject matter jurisdiction to decide the
preemption issue. Mendota Heights emphasizes that requiring the preemption issue to be
decided by a district court, while the meri ts of the workers’ compensation action are
decided by the compensation courts, would re sult in case-splitting and squander judicial
resources with parallel proceedings. It cites to our decision in In re McCannel, 301 N.W.2d
910, 920 (Minn. 1980), in which we held that the tax court may decide constitutional claims
in some instances. Mendota Heights asserts th at the tax court’s jurisdictional statute and
that of the WCCA use “substantively identical language,” while noting that McCannel was
decided one year before the statute establishing the WCCA’s jurisdiction was enacted.4
Musta responds that deciding the preemp tion issue would require the WCCA to
interpret federal civil and criminal law as well as the statutes that govern Minnesota’s THC
Act, all of which are outside the scope of Minnesota’s workers’ compensation laws. Thus,

4 Mendota Heights also suggests that the WCCA’s refusal to decide the jurisdictional
question was a denial of due process. We need not deci de this issue because we have
resolved the preemption issue in favor of Mendota Heights. See, e.g., State v. N. Star Rsch.
& Dev. Inst., 200 N.W.2d 410, 425 (Minn. 1972) (stating that we do not “decide important
constitutional questions unless it is necessary to do so”).
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she maintains, the WCCA did not have the necessary jurisdiction to decide the preemption
issue in this case given our consistent c onclusion that the WCCA does not have the
authority to interpret the laws of other jurisdictions or other Minnesota statutes.
We agree with Musta. Although Musta’s claim certainly arises under Minnesota’s
workers’ compensation law—she seeks only reimbursement for the medical treatment she
now uses, see Minn. Stat. § 176.135, subd. 1(a) (requiring the employer to “furnish any
medical . . . treatment, including . . . medicines”)—the precise legal question before the
WCCA falls squarely outside of workers’ co mpensation laws: does federal law, properly
interpreted, preempt the broad requirement in section 176.135 for employers to reimburse
injured employees for “any” medi cal treatment, including when the treatment at issue is
medical cannabis. The Legislature has de scribed the WCCA’s jurisdiction over legal
questions as specific to those “ arising under the work ers’ compensation laws ” of
Minnesota. Minn. Stat. § 175A.01, subd . 5 (emphasis added). By requiring an
interpretation and analysis of federal law, the preemption issue presented in this case does
not arise under Minnesota’s workers’ compensa tion laws; it arises under federal law and
legal principles that govern statutory interpretation when resolving claims of alleged
conflicts between state and federal laws. See, e.g., In re Est. of Barg, 752 N.W.2d 52, 63
(Minn. 2008) (explaining the importance of congressional intent and purpose in a
preemption inquiry based on federal law).
Indeed, we have consistently held that when resolution of an issue would require
the WCCA to interpret and apply, not merely look to, the laws of another sovereign, the
WCCA is without jurisdiction to do so. See Martin, 803 N.W.2d at 371; Hale v. Viking
10
Trucking Co., 654 N.W.2d 119, 124 (Minn. 2002). For example, in Sundby, the WCCA
held that children’s benefits under Social Security Disability Insurance (SSDI) should be
included in reducing an employer’s paymen t of workers’ compensation benefits.
693 N.W.2d at 213. We affirmed that decision, observing that the Workers’ Compensation
Act expressly permits “any government disability benefits” in the offset. Id. at 211 (citing
Minn. Stat. § 176.101, subd. 4 (2004)). A lthough we noted that “[t]he WCCA’s
jurisdiction does not extend to interpreting or applying legi slation designed specially for
the handling of claims outside the workers’ compensation system,” we concluded that the
WCCA had merely looked to federal law to ultimately “ascertain[] the appropriate
inclusion of SSDI benefits in the workers’ compensation benefits offset calculation” under
Minnesota’s workers’ compensation laws. Id. at 215. Here, the WCCA correctly
recognized that, consistent with our statement in Sundby, deciding the preemption issue
would impermissibly require it “to interp ret and apply laws beyond the Workers’
Compensation Act.” Musta, 2020 WL 6799288, at *3.
Mendota Heights contends that our orde r denying certification, which cited the
decision process provided for in Minn. Stat. § 176.322 (2020) (authorizing a decision based
on stipulated facts), reflected our expectation that the co mpensation judge or the WCCA
would decide the preemption issue on the merits. We disagree. In de nying certification,
we relied primarily on the principle that cer tification is not a substitute for the normal
appellate process, even for impor tant and doubtful questions. See Musta v. Mendota
Heights Dental Ctr., No. A19-1365, Order at 1–2 (Minn. filed Oct. 16, 2019) (stating that
“ ‘not every vexing question is important and doubtful’ and questions of first impression
11
are not alone sufficient ‘to justify certification as doubtful.’ ” (quoting Emme v. C.O.M.B.,
Inc., 418 N.W.2d 176, 179–80 (Minn. 1988))).
Finally, our decision in McCannel does not support the conclusion that the WCCA
has subject matter jurisdiction over the preemption issue presented here. In McCannel, we
noted that “[a]s a general rule, administrative agencies lack the power to declare legislation
unconstitutional” and that “[i]nstead, these issues must be raised in a court of the judiciary.”
301 N.W.2d at 919. Nevertheless, we recognized the importance of allowing the tax court
to operate “effectively and expeditiously” by deciding all issues presented by the case. Id.
at 920. Thus, when a constitutional issue is pr esented in a tax dispute, we noted, the tax
court could “acquire jurisdiction in the first in stance through transfers of cases from the
district court, which does have the jurisd iction to determine the constitutionality of
legislative acts.” Id. at 919 (emphasis added); see Guilliams v. Comm’r of Revenue , 299
N.W.2d 138, 139 n.1 (Minn. 19 80) (noting that the tax co urt has jurisdiction over a
constitutional claim when the claim is raised “in the first instance . . . in the district court
before the case is transfe rred to the tax court”); see also Erie Mining Co. v. Comm’r of
Revenue, 343 N.W.2d 261, 264 (Minn. 1984) (explaini ng that because the tax court does
not have “original jurisdictio n to decide constitutional i ssues,” it must “refer the
constitutional question to the district court,” which can choose to “refer the matter back to
the tax court which will then ha ve subject matter jurisdiction” over that issue). No one
contends that a district court conferred its original jurisdiction over the preemption issue
presented here on the compensation judge or the WCCA. Thus, the general rule stated in
McCannel—constitutional issues must be decided by “a court of the judiciary” rather than
12
an executive branch ag ency—controls here, rath er than the process us ed in tax cases to
secure a district court’s jurisdic tion over a constitutional claim. See Irwin v. Surdyks
Liquor, 599 N.W.2d 132, 139–40 (Minn. 1999) (acknowledging that the WCCA does not
have subject matter jurisdiction over constitutional claims).
We have reiterated that the statutory juri sdiction of the compensation courts does
not extend to interpretation of laws outside of legal questi ons and facts arising under the
workers’ compensation law.5 See Martin, 803 N.W.2d at 371 (holding that WCCA lacked
jurisdiction to declare insurance contract invalid under Wisconsin law); see also Freeman
v. Armour Food Co. , 380 N.W.2d 816, 8 20 (Minn. 1986); Taft v. Advanced United
Expressways, 464 N.W.2d 725, 727 (Minn. 1991). Consequently, we hold that the WCCA
lacks jurisdiction to decide whether federal law preempts Minnesota law that requires an
employer to “furnish” medical treatment when the treatment for wh ich reimbursement is
sought is medical cannabis.
II.
Having concluded that the WCCA correctly determined that it lacks jurisdiction
over the preemption issue in this case, we now turn to that issue. See Gist v. Atlas Staffing,
Inc., 910 N.W.2d 24, 31–33 (Mi nn. 2018) (deciding a pree mption issue under federal
Medicaid and Medicare law that was not addr essed by the WCCA, which concluded that

5 When a case requires “judicial construc tion” of a statute outside of workers’
compensation laws, the remedy is to bring “a declaratory judgment action in district court.”
Taft v. Advanced United Expressways , 464 N.W.2d 725, 727 (Minn. 1991). Although
Mendota Heights is correct that requiring a di strict court to determine a preemption issue
may be an inefficient use of judicial resources, efficiency does not permit the WCCA to
exceed the carefully defined limits of its specialized jurisdiction.
13
it lacked jurisdiction over that issue); see also In re Lauritsen , 109 N.W. 404, 407–08
(Minn. 1906) (recognizing that “a court of final resort” can provide “peremptory and
prompt relief”).
Preemption of a state law by federal law is based on the Supremacy Clause of the
United States Constitution. See Gist, 910 N.W.2d at 33; see also Gonzales v. Raich ,
545 U.S. 1, 29 (2005) (stating that when “the re is any conflict between federal and state
law, federal law shall prevail”). “Preemp tion is primarily an issue of statutory
interpretation, which is subject to de novo review.” DSCC v. Simon, 950 N.W.2d 280, 287
(Minn. 2020) (citation omitted) (internal qu otation marks omitted). “In all preemption
cases, and particularly those in which Congress has legislated in a field that the states have
traditionally occupied”—like workers’ compensation—we begin “with the assumption that
the historic police powers of the states were not superseded by the federal act unless that
was the clear and manifest purpose of Congress.” Gretsch v. Vantium Cap., Inc. ,
846 N.W.2d 424, 433 (Minn. 2014 ). Accordingly, “preemption is generally disfavored.”
Id. At issue here is conflict preemption, which may occur when it is impossible to comply
with both state law and federal law (impossibility preemption) or when the state law stands
as an impermissible obstacle to accomplishing the objectives of the federal law (obstacle
preemption). DSCC, 950 N.W.2d at 288.
“Congressional purpose is the ultimate touchstone” of our inquiry into preemption
by federal law. Barg, 752 N.W.2d at 63 (c itation omitted) (inter nal quotation marks
omitted). “The main objectiv es of the CSA were to conq uer drug abuse and control the
legitimate and illegitimate traffic in controlled substances.” Raich, 545 U.S. at 12. And
14
“Congress was particularly concerned with the need to prevent the diversion of drugs from
legitimate to illicit channels.” Id at 12–13. The CSA explicitly de fines the scope of its
preemptive reach. A state law is preempted by the CSA only when “there is a positive
conflict between” a provision of the CSA and that state law “so that the two cannot
consistently stand together.” 21 U.S.C. § 903. This provision “is an express invocation of
conflict preemption.” Or. Prescription Drug Monitoring Program v. U.S. Drug Enf’t
Admin., 860 F.3d 1228, 1236 (9th Cir. 2017).
Mendota Heights contends that it is not possible to comply with both state and
federal law because if it complies with the order made under the Minnesota workers’
compensation law to reimburse Musta for th e medical cannabis expense, then Mendota
Heights cannot comply with the federal pr ohibition against aiding and abetting the
possession of cannabis. See Rosemond v. United States , 572 U.S. 65, 76 (2014) (“[A]
person aids and abets a crime when (in addition to taking the requisite act) he intends to
facilitate that offense’s commission.”). Stated another way, Mendota Heights asserts that
compelling it, by judicial order, to reimburse Musta for medical cannabis “require[d it] to
commit a federal crime.” Mendota Heights relies on the decision of the Maine Supreme
Judicial Court case Bourgoin v. Twin Rivers Paper Co., LLC , which held that the CSA
preempts an order to reimburse an employ ee for medical cannabis under the Maine
workers’ compensation laws because that or der required the employer to “engage in
conduct that would violate the CSA.” 187 A.3d 10, 20 (Me. 2018). Mendota Heights also
argues that the likelihood of prosecution fo r violating the CSA—minimal or otherwise—
is a legally irrelevant factor in the preemption analysis.
15
In response, Musta contends that Congress has demonstrated an intent to not
obstruct state medical cannabis programs by annually prohibiting the United States
Department of Justice from spending funds to prosecute persons who use medical cannabis
consistent with their state’s laws. She relies on decisions from state courts that have found
no conflict between the federal law and state law requirements to reimburse for medical
cannabis, including the dissenting opinion in Bourgoin, 187 A.3d at 23 (Jabar, J.,
dissenting). Finally, Musta asserts that Mendota Heights cannot be deemed to aid and abet
her possession of cannabis because the crim e of possession has already occurred, a
completed crime cannot be ai ded and abetted, and Mendot a Heights does not possess the
specific intent required for aiding and abetting.
We acknowledge that this issue represen ts a unique and challenging intersection
between the law of preemption, federal aidi ng and abetting jurisprudence, the ongoing
tension between the states and the federal government regarding cannabis regulation, and
the objectives of the Minnesot a workers’ compensation system . But we are not the first
state court of last resort to decide this speci fic issue. Thus, we be gin with the decisions
that have already addressed the preemptive effect of the CSA on orders for reimbursement
of medical cannabis made under state workers’ compensation laws.
In Bourgoin, the Maine Supreme Judicial Court was the first state supreme court to
decide a preemption challenge in the contex t of employer reimbursement for workers’
compensation benefits. Id. at 19–20. As here, an employee sought reimbursement from
the employer for medical cannabis, which wa s used to treat a work-related injury. Id. at
13. The employer opposed the reimbursement request, asserting that, even if the
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employee’s medical cannabis use is permitted by state law, requiring the employer to pay
for it is barred by federal law. Id. The Bourgoin court concluded that a right provided by
state law to use medical cannabis “cannot be converted into a sword that would require”
an employer “to engage in conduct that would violate the CSA.” Id. at 20. The court
recognized that an employer would be liable under federal la w on an aiding and abetting
theory because the employer—required to reimburse the employee for his use of medical
cannabis—would be “acting with knowledge that it was subs idizing Bourgoin’s purchase
of marijuana.” Id. at 19. On the other hand, the em ployer would violate state law if it
refused to reimburse the employee. Id. The Bourgoin court therefore concluded that
“[c]ompliance with [state and federal law] is an impossibility.” Id.; see also Wright’s Case,
156 N.E.3d 161, 166 (Mass. 2020) (stating that a state may “authorize those who want to
use medical marijuana . . . to do so and assume the potential risk of Federal prosecution,”
but it is “quite another” thing for the state “to require unwilling third parties to pay for such
use and risk such prosecution”).6
Two state supreme courts have reac hed a different conclusion. In Appeal of
Panaggio, ___ A.3d ___, 20 21 WL 787021 (N.H. Mar. 2, 2021), the New Hampshire
Supreme Court rejected the conclusion reac hed by the Maine Supreme Judicial Court in
Bourgoin—that the employer would be criminally liable under federal law, 187 A.3d at
19—stating that federal law “does not crimina lize the act of insurance reimbursement for

6 The Massachusetts Supreme Judicial Court concluded in this case that an employer
is not required to reimburse an employee for medical cannabis used to treat a work-related
injury, based on language in that state’s medi cal cannabis law that relieves “any health
insurance provider” from a reimbursement obligation. 156 N.E.3d at 172, 175.
17
an employee’s purchase of medical mariju ana.” 2021 WL 787021, at *4. The Panaggio
court concluded instead that the employer lacked the requisite mens rea for an aiding and
abetting offense under federal law because the employer’s reimbursement is compelled by
state law, rather than voluntary participation in an offense. Id. at *6. Thus, the court
concluded, it was not impossible to comply with both state and federal law. Id.7
The New Jersey Supreme Court reached the same conclusion, though on different
reasoning, in Hager v. M & K Construction , 247 A.3d 864 (N.J. 2021). Looking to
“appropriations acts as expressions of legislative intent,” id. at 885, the Hager court
observed that “Congress has, for seven consecutive fiscal years, prohibited the [Department
of Justice] from using funds to interfere with state medical ma rijuana laws through
appropriations riders.” Id. at 886. The court concluded th at this “clear, volitional act in
the form of appropriations law takes precedence over” the CSA. Id. at 887. Thus, there
was no conflict between federal and state law, and state law did not stand as “an obstacle”
to congressional objectives. Id.
Apart from the workers’ comp ensation context, courts ha ve found preemption by
the CSA in some situations, and no conflict or preemption in others. Compare Garcia v.
Tractor Supply Co ., 154 F. Supp.3d 1225 , 1229–30 (D.N.M. 2016) (concluding that an

7 The Panaggio court also analyzed, then rejected , obstacle preemption, stating that
“the CSA does not make it illegal for an insu rer to reimburse an employee” for medical
cannabis, “does [not] purport to regulate in surance practices in any manner,” and the
reimbursement order “does not interfere with the federal government’s ability to enforce
the CSA” by prosecuting the employee for possession. Id. at *8. Because we conclude
that the CSA preempts the order for reimbur sement under the impo ssibility theory of
conflict preemption, we need not—and decline to—analyze the obstacle theory of conflict
preemption.
18
employer is not required to accommodate an employee’s use of me dical cannabis as a
matter of state law), and Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus. ,
230 P.3d 518, 536 (O r. 2010) (concluding that portion of Oregon law governing use of
medical cannabis is preempted by CSA), with White Mountain Health Ctr., Inc. v.
Maricopa Cnty., 386 P.3d 416, 432–33 (Ariz. Ct. App. 2016) (concluding that requiring
county to process application for medical cannabis provider as directed by state zoning law
is not preempted by CSA), and Ter Beek v. City of Wyoming , 846 N.W.2d 531, 537–41
(Mich. 2014) (holding that immu nity provision in Michigan medical cannabis law is not
preempted by CSA). We ultim ately agree with the reasoni ng set forth by the Maine
Supreme Judicial Court in Bourgoin: the CSA preempts mandated reimbursement of an
employee’s medical cannabis purchases unde r an impossibility th eory of conflict
preemption. Specifically, we agree that a right provided to an individual under Minnesota’s
workers’ compensation law to secure reimbur sement for the use of medical cannabis to
treat a diagnosed medical cond ition cannot be “converted in to a sword that” requires an
employer to pay for those purch ases and thus “engage in c onduct that would violate the
CSA.” 187 A.3d at 20.
We recognize that the federal government’ s position on criminal prosecution of
cannabis offenses has been in a state of flux for over a decade. At one point, the United
States Department of Justice announced th at it would not prosec ute cannabis offenses
under the CSA when a cannabis user complies with state law; but the Department later
rescinded those directions. See Hager , 247 A.3d at 882–83. Further, Congress has
prohibited the Department of Justice from us ing allocated funds to prevent states from
19
implementing medical cannabis laws. Id. at 883–84. We disagree with the Hager court
that these actions—and the congressional appr opriation riders in particular—suspend the
illegality of cannabis under the CSA or take precedence over that law. See id. at 887.
Repeal by implication is heavily disfavored, especially when “the subsequent legislation is
an appropriations measure.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 190 (1978) (citation
omitted) (internal quotation marks omitted). As the Ninth Circuit observed in United States
v. McIntosh , the appropriation riders “do[] not pr ovide immunity from prosecution for
federal marijuana offenses.” 833 F.3d 1163 , 1179 n.5 (9th Cir. 20 16). The riders are
merely temporary measures that can be re scinded at any time, thus allowing the
government to “prosecute indi viduals who committed offenses while the government
lacked funding .” Id. (emphasis added); see also Bourgoin , 187 A.3d at 20–21 & n.10
(rejecting reliance on the Department’s none nforcement memorandum because it was a
“transitory” policy, as evidenced by its later revocation by Attorney General Sessions).
Nor can we agree that, as a practical ma tter, Mendota Heights is unlikely to be
prosecuted. Impossibility pr eemption does not turn on speculation about future
prosecutorial decisions, but on whether co mpliance with both stat e and federal law is
impossible. See DSCC, 950 N.W.2d at 288. The conflict here is real, not speculative. See
Exxon Corp. v. Governor of Md. , 437 U.S. 117, 131 (1978) (stating that a “hypothetical
conflict” does not warrant preemption). Desp ite action in multiple states relating to
medical cannabis and other cannabis-related issues, Congress has never chosen to de-
schedule or re-schedule cannabis; it has inst ead used funding mech anisms to institute
temporary, short-term stays of enforcement. Possession of cannabis remains prohibited by
20
the CSA, and we cannot read these riders as implicit su spensions of a legislative
determination of illegality.
Even setting aside the prosecution risk, the heart of Musta’s argument—an order
made under state law that compels reimbursement negates mens rea and the specific intent
necessary to satisfy federal aiding and abetting—is misplaced. The Supreme Court of the
United States has consistently held that co mpelling a person to act does not necessarily
negate the actor’s mens rea. See Dixon v. United States, 548 U.S. 1, 6–7 (2006). Instead,
necessity (like duress and self-d efense) is an affirmative defe nse that goes to motive, not
intent. Rosemond, 572 U.S. at 89 (Alito, J., concurring in part, dissenting in part) (“[O]ur
cases have recognized that a lawful motive (such as necessity, duress, or self-defense) is
consistent with the mens rea necessary to satisfy a requirement of intent.”). As the
Rosemond Court put it, “The law does not, nor sh ould it, care whet her [the aider and
abettor] participates with a happy heart or a se nse of foreboding. Either way, he has the
same culpability . . . .” Id. at 79–80.8
The intent requirement of federal aiding and abetting is satisfied “when a person
actively participates in a criminal ventur e with full knowledge of the circumstances

8 The dissent brushes aside the distincti on between intent and motive, claiming that
the Rosemond Court rejected a similar criticism when it held that a defendant must have
“advance knowledge” of the presence of a firearm for the defendant to be guilty of aiding
and abetting a crime involving the use of a firearm. 572 U.S. at 78. The Rosemond Court
reasoned that the “distinctive intent standard for aiding and abetting” cannot be satisfied
when a defendant learns of the presence of the firearm “only after he can realistically walk
away.” Id. at 81 n.10. But this reasoning lends no support to the dissent’s position because
Mendota Heights unquestionably has advance knowledge of the underlying conduct that it
would be aiding.
21
constituting the charged offense.” 9 Id. at 77. Here, Mendota Heights is fully
knowledgeable about the circ umstances advanced by its compelled reimbursement:
Musta’s possession of cannabis that is unlaw ful under the CSA. This reimbursement,
which Mendota Heights must comp ly with as it is embedded in a judicial order, finances
Musta’s possession and effectively facilitates future possession. Thus, the order compels
Mendota Heights’ active participation in the possession that is criminalized by the CSA.10

9 The Rosemond Court differentiated the knowledg e and active participation that it
found satisfied specific intent by describing th e hypothetical case of a gun store owner
“who sells a firearm to a criminal, knowing but not caring how the gun will be used.”
572 U.S. at 77 n.8. Several courts, including the Panaggio court, 2021 WL 787021, at *5
n.1, have read this footnote as describing a situation in which specific intent is lacking. But
the very next sentence in the footnote explai ns: “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.” Rosemond, 572 U.S. at 77 n.8. Rather than explaining
that this situation was not aiding and abetting, the Court merely described one situation in
which it has not yet decided whether aiding and abetting was satisfied.

10 The dissent offers several hypothetic als to challenge our application of the
Rosemond framework. The first is an employe e who informs her em ployer that her
paycheck will be used to purcha se cannabis. But this hypothe tical fails to appreciate the
close connection between the aid provided and the crime committed. In the case at issue
here, the reimbursement ordered is explicitly and exclusively for cannabis. In the dissent’s
hypothetical, the paycheck can be, and indeed ordinarily is, used for any number of
purchases wholly outside the control of the employer.
The same is true with the bus driver hypothetical. The route driven is not solely for
the benefit of a passenger to obtain cannabis, and the nexus between the transportation
provided and results obtained is far weaker than the case here.
The taxi driver hypothetical is a closer call. For a taxi driver to knowingly transport
a passenger to a location to commit a crime ma y implicate aiding and abetting. Consider
the counter-hypothetical where a passenger informs the taxi dr iver, “I am going to rob a
bank, wait for me outside so we can drive away afterwards .” Setting aside affirmative
defenses like duress, the taxi driver may be acting with full knowle dge of the crime of
robbery to be committed, and the taxi driver knowingly transporting a person to a
dispensary for the sole purpose of purchasing cannabis in violation of federal law may in
fact be doing the same.
22
Our conclusion finds support in federal case law. In Garcia, an employee was fired
after testing positive for cannabis despite informing his employer that he consumed
medical cannabis to alleviate symptoms of HI V/AIDS. 154 F. Supp.3d at 1226–27. The
employee sued, alleging discrimination ba sed on a medical cond ition under the New
Mexico equivalent of the Minnesota Human Rights Act. Id. at 1227. The federal district
court held that the employer was not requir ed to accommodate the employee’s use of
medical cannabis. Id. at 1230. It concluded that, “[t]o affirmatively require Tractor Supply
to accommodate Mr. Garcia’s illegal drug use would mandate Tractor Supply to permit the
very conduct the CSA proscribes.” Id.; see also Emerald Steel Fabricators , 230 P.3d at
536 (concluding that the CSA preempted stat e law such that an employer was not
prohibited from firing an employee for using medical cannabis).
Although the district court in Garcia did not explicitly find that the employer would
be aiding and abetting the employee’s posse ssion of medical cannabis, the logic is the
same: the state cannot force an employer to facilitate an employee’s unlawful possession
of cannabis, either through work accommodations or reimbursement for its purchase.11

11 The dissent criticizes our citation to Garcia because the implicit basis for that
decision was obstacle preemptio n; and the case on which Garcia relies, Emerald Steel
Fabricators, was decided explicitly under obstacle preemption. Garcia, 154 F.Supp.3d at
1230; Emerald Steel Fabricators, 230 P.3d at 536. But that fact alone does not undermine
the persuasive nature of the analysis in those cases. And the case for preemption is indeed
stronger here because an actual conflict ex ists that makes it impossible for Mendota
Heights to comply with both federal and state law, as opposed to Garcia and Emerald Steel
Fabricators, where compliance with state accommodations law was simply an obstacle to
congressional purpose in enacting the federal prohibition on cannabis possession under the
CSA.
23
We also reject Musta’s argument and the dissent’s conclusion that Mendota Heights
cannot aid and abet her posse ssion because that possession ha s already occurred by the
time Mendota Heights reimburses her. Gene rally, “a person cannot be found guilty of
aiding and abetting a crime that has already been committed.” United States v. Hamilton,
334 F.3d 170, 180 (2d Cir. 2003). But “aiding and abetting a drug offense may encompass
activities, intended to ensure the success of the underlying crime, that take place after . . .
the principal no longer possesses the [illegal substance].” United States v. Ledezma ,
26 F.3d 636, 643 (6th Cir. 1994). The same is true with money laundering, which occurs
after the distribution of illegal substances, but may nevertheless aid and abet the underlying
crime because it is “integral to the success of a drug venture.”12 United States v. Orozco-
Prada, 732 F.2d 1076, 1080 (2d Cir. 1984).
Although the compensation court’s order does not require Mendota Heights to
reimburse Musta on an ongoing basis, neith er does that order limit Mendota Heights’s
reimbursement obligation to a one-time purchase. Musta obtained and possessed medical
cannabis, and will continue to do so in the future,13 based on the expectation that Mendota

12 Although Orozco-Prada was technically about conspiracy to aid and abet, in finding
probable cause to support the conspiracy charge, the court implicitly recognized that aiding
and abetting was also satisfie d by the postdistribution act. See United States v. Perez ,
922 F.2d 782, 786 (1 1th Cir. 1991) (citing Orozco-Prada in upholding a conviction of
aiding and abetting illegal narcotics possession and distribution when the conduct at issue
occurred after the underlying possession).

13 Musta’s qualifying condition under the THC act is chronic pain, and there is nothing
in the record to suggest th at she will purchase and possess medical cannabis on only a
single occasion. Quite the opposite, Musta had undergone extensive, unsuccessful medical

24
Heights’s reimbursement obligation is established by state law. See Minn. Stat. § 176.135,
subd. 1(a).14 Indeed, the entire purpose of reimbursement under our workers’
compensation scheme is to fulfill the legislative policy to provide injured employees with
“quick and efficient delivery of . . . medical benefits” that are reasonable and necessary to
treat the work-related injury. See Minn. Stat. § 176.001 (2020). And as long as medical
cannabis remains “reasonably . . . required” to treat and cure the effects of Musta’s injury,
the Workers’ Compensation Act requires Mend ota Heights to fund Musta’s ongoing use
and possession that is illegal under federal law.
Thus, we conclude that mandating Mendota Heights to pay for Musta’s medical
cannabis, by way of a court order, makes Mendota Heights criminally liable for aiding and
abetting the possession of cannabis under federal law.15 Finally, we note the argument by
the dissent that preemption here frustrates the intention of the Legislature to make medical

intervention before she began using medical cannabis, which appears to provide her at least
some relief.

14 It also strikes us as odd to suppose that Musta’s first reimbursement of medical
cannabis would not be preempted by the CSA, but each subsequent request would be. Or
similarly, that Musta’s reimbursement would not be preempted because she can afford her
medical cannabis while another employee’s re imbursement would be preempted if that
employee could not afford the medical cannabis without reimbursement. It is far sounder,
based on the expectations and obligations designed into our workers’ compensation laws,
to conclude that all of these reimbursements are preempted.

15 We note the constitutional danger lurking in Musta’s ar gument that a state court
order can negate the mens rea for a federal crime. Were we to adopt her reasoning, then a
state could nullify any federal specific intent crime by simply passing legislation that
mandates a person to perform the criminal act. Under our constitutional order, that cannot
be. To do so would undermine the entire purpo se of the Supremacy Clause of the United
States Constitution.
25
cannabis available to patients suffering from intr actable pain. We agree that if the result
here is not beneficial to the employee, the remedy is for Congress to pass, and the President
to sign, legislation that addresses the preem ption issues created by the conflict between
federal and state law.
As it is impossible to comply with both state and federal la w, the compensation
court’s order is preempted by the CSA. 16 Accordingly, we reverse the decision of the
Workers’ Compensation Court of Appeals.

16 Because we conclude that the CSA pr eempts the order for reimbursement under
impossibility preemption, we need not—and decline to—analyze obstacle preemption. We
note that there may be other legal theories under which the CSA preempts such an order,
but we confine our analysis to the theo ries raised and argue d by the parties. See State v.
Caldwell, 803 N.W.2d 373, 382 n.3 (Minn. 2011).
Although the dissent finds our interpretati on of the intent standard for aiding and
abetting liability to be “exp ansive[]” and “troubling,” our decision is based on the
authoritative statements by the Rosemond Court, which itself reflects the uncertainty and
breadth of accomplice liability in the law as it stands. See Stephen P. Garvey, Reading
Rosemond, 12 Ohio St. J. Crim. L. 233, 241 (2014) (stating that the Supreme Court’s
guidance on the mental state required for aiding and abetting liability “is no model of
clarity” and offering three frameworks for interpreting Rosemond); Lauren A. Newell,
Hitting the Trip Wire: When Does a Company Become a “Marijuana Business”?, 101 B.U.
L. Rev. 1105, 1131–32 (2021) (explaining that the CSA “casts a wide net of potential
liability” and that the “most difficult cases” involve potential liability under conspiracy or
aiding and abetting theories).
Consequently, we emphasize that our decision here finding preemption by the CSA
is limited to the unique facts and setting of th is dispute: a claim for reimbursement of
medical expenses, incurred to treat a work-re lated injury, where th e treatment for which
the expense is incurred is the purchase and use of medical cannabis, with the
reimbursement liability determined in a le gal proceeding. We express no opinion on
whether the CSA preempts any component of Minnesota’s medical cannabis program, nor
does our preemption decision here extend to any other form of medical treatment.
26
CONCLUSION
For the foregoing reasons, we reverse the decision of the workers’ compensation
court of appeals.
Reversed.

C/D-1
C O N C U R R E N C E & D I S S E N T
CHUTICH, Justice (concurring in part, dissenting in part).
I agree with Part I of the court’s de cision, which holds that the Workers’
Compensation Court of Appeals lacks subject matter jurisdiction to decide whether federal
law preempts a provision of Minnesota’s wo rkers’ compensation la w that requires an
employer to reimburse an employee who purchases medical cannabis. See Minn. Stat.
§ 176.135, subd. 1(a) (2020) (requiring an employer to “furnish any medical . . .
treatment . . . as may reasonably be required” to treat a work-related injury). I write
separately because I disagree with the court’s holding in Part II that the federal Controlled
Substances Act, 21 U.S.C. §§ 801–971, preempts an employer’s oblig ation under state
workers’ compensation law, Minn. Stat. § 176. 135, subd. 1(a), to reimburse an employee
who buys medical cannabis that is reasonably required to treat the employee’s work-related
injury. Because the court’s co nclusion that a conflict of law exists rests on an unduly
expansive view of aiding and abetting liability, with th e result of denying injured
employees reasonable and necessary medical treatment,1 I respectfully dissent.
Federal law establishes that a person who “aids, abets, counsels, commands, induces
or procures” the commission of a federal offense “is punishable as a principal.” 18 U.S.C.
§ 2. As explained in Rosemond v. United States , 572 U.S. 65, 71 (2014), aiding and
abetting has two elements. A person must carry out an “affirmative act in furtherance of”
the crime with “the intent of f acilitating the offense’s commission.” Id. Reimbursing

1 The parties stipulated that medical ca nnabis is reasonable and necessary to treat
Musta’s work-related injury.

C/D-2
Musta for her prior purchase of cannabis pursu ant to the order of the compensation judge
satisfies neither element. Nor is Minnesota ’s workers’ compensation law, Minn. Stat.
§ 176.135, subd. 1(a), an impermissible “obs tacle” to the purposes of the Controlled
Substances Act.
I.
I begin with the element of an affirmativ e act in furtherance of the crime. A
defendant can be convicted of aiding and abe tting without proof of participating in every
aspect of the crime, but the defendant must have aided in some aspect of the crime.
Rosemond, 572 U.S. at 74–75 (“It is inconsequential . . . that [a defendant’s] acts did not
advance each element of the o ffense; all that matters is that they facilitated one
component.”). Accordingly, a person cannot aid and abet a crime after it is complete, as is
well established. See United States v. Centeno, 793 F.3d 378, 390 (3d Cir. 2015); United
States v. Figueroa-Cartagena, 612 F.3d 69, 74 (1st Cir. 2010); United States v. Hamilton,
334 F.3d 170, 180 (2d Cir. 2003); United States v. Delpit, 94 F.3d 1134, 1150–51 (8th Cir.
1996).
Here, the compensation judge ordered relators Mendota Heights Dental Center and
Hartford Insurance Group (collectively, Mendota Heights) to reimburse Musta for her prior
purchase of medical cannabis. Because that purchase and the related possession are already
complete, reimbursing Musta now would not further any element of an offense of
possession. See United States v. Ledezma , 26 F.3d 636, 642–43 (6 th Cir. 1994) (holding
that the evidence did not sup port an aiding and abetting conviction when the defendant

C/D-3
entered the conspiracy after the illegal possession was complete). Consequently, Mendota
Heights can comply with the reimbursement order without violating federal law.
The court tries to circumvent the completed-crime rule in two ways. First, the court
concludes that an exception to the rule applies, citing Ledezma. Under that exception,
aiding and abetting drug offenses “may enco mpass activities, intend ed to ensure the
success of the underlying crime, that take place after . . . the principal no longer possesses
the [illegal substance].” Id. at 643. But Ledezma recognized that exception in only two
contexts. First, after-the-fact actions may be aiding and abetting when the crime is still on-
going, such as when the dr ugs have changed hands but the money has not. Id. (citing
United States v. Coady, 809 F.2d 119, 124 (1st Cir. 1987)). Second, after-the-fact measures
may aid and abet when the defendant’s action is a “recurring contribution to a continuing
crime,” such as laundering mone y proceeds of a drug sale. Id. (citing United States v.
Orozco–Prada, 732 F.2d 1076, 1080 (2d Cir. 1984)). Neither circumstance is present in
this case.
Unlike the transaction in Coady, Musta’s purchase is alre ady complete. So too is
the related possession, or at least, if ongoing, it would not be affected by any reimbursement
now. And unlike Orozco-Prada, reimbursement after the fact is not “ integral to the
success” of unlawful possession in the same wa y that money-laundering is integral to a
drug distribution scheme. Orozco–Prada, 732 F.2d at 1080. Af ter all, selling drugs is
useless if the proceeds are unusable, but a pers on may find any number of ways to fund a
purchase of medical cannabis. Here, Musta purchased the medical cannabis on her own
without knowing whether she would ultimately be reimbursed.

C/D-4
Second, the court relies heavily on Musta’s expectation of reimbursement and
assumes that Musta will contin ue to buy medical cannabis with the expectation of being
reimbursed. But Musta’s unilateral expectation does not extend the duration of a crime of
possession after it is complete, at least when Mendota Height s does not agree in advance
to reimburse her. Mendota Heights has not stated that it will reimburse any future purchase,
and whatever statutory obligation it may have to reimburse Musta in the future will depend
on the facts and circumstances existing at that time. See Minn. Stat. § 176.135, subd. 1(a)
(requiring an employer to furnish treatment that is reasonably required “at the time of the
injury and any time thereafter” (emphasis added)); Minn. Stat. § 176.136, subd. 2(2) (2020)
(permitting an employer to refuse to pay for treatment that is excessive).
Musta’s personal expectation of future reimbursement is therefore far different from
the recurring contribution of a defendant who, by agreeing to launder proceeds of illegal
sales on a recurring basis, has offered encouragement and aid for the completed sale—and
potentially for future sales too. See Orozco-Prada , 732 F.2d at 1080. Accordingly,
Mendota Heights can comply with the reimbursement order without violating federal law
because reimbursement would not contribute to any element of a crime “before or at the
time the crime was committed.” Delpit, 94 F.3d at 1151.
II.
Even assuming that the a ffirmative-act requirement would be met, Mendota Heights
could not be liable under an aiding and abetting theory because it lacks the required intent.
Under the “canonical formulation” of intent for aiding and abetting, “a defendant must not
just ‘in some sort associate hi mself with the venture,’ but al so ‘participate in it as in

C/D-5
something that he wishes to bring about’ an d ‘seek by his action to make it succeed.’ ”
Rosemond, 572 U.S. at 76 (quoting Nye & Nissen v. United States , 336 U.S. 613, 619
(1949)). In other words, the defendant must act with the purpose of furthering the crime.
Undoubtedly, Mendota Heights has no desire to help Musta possess cannabis. This
lawsuit and appeal are ample evidence of that fact. See Hager v. M&K Constr., 247 A.3d
864, 889 (N.J. 2021) ( observing that, “[b]y the very natu re of its appeals,” the employer
“has made it clear that it doe s not wish” to aid in an em ployee’s possession of medical
cannabis). Accordingly, the court turns to a different formulation of the intent standard in
Rosemond, namely, that the intent requirement ma y be satisfied “when a person actively
participates in a criminal venture with full knowledge of the circumstances constituting the
charged offense.” 572 U.S. at 77. The c ourt reasons that becaus e reimbursement would
finance Musta’s possession and effectively facilitate her future possession, Mendota
Heights would actively participate in Must a’s possession of medical cannabis if it
reimburses her. And because Mendota Heig hts is “fully knowledgeable about the
circumstances advanced” by its compelled re imbursement, the knowledge requirement is
met.
I agree with the court that active particip ation with full knowledge of the criminal
scheme can satisfy the intent re quirement for aiding and abetti ng, as is clearly stated in
Rosemond. 572 U.S. at 77. But I disagree that reimbursin g an employee to fulfill a
statutory duty that is determin ed by a court order is “active pa rticipation” in a crime that
the employee chooses to commit.

C/D-6
Rosemond does not suggest that knowingly active participation represents a lesser
mens rea than acting with the specific purpose of furthering the crime. Instead, active
participation operates as a means of demonstrating that a person intends to facilitate a
crime, as both the majority and dissent in Rosemond recognized. See id. (“[A] person who
actively participates in a criminal scheme knowing its extent and character intends that
scheme’s commission.” (emphasis added)); id. at 85 (Alito, J., dissenting) (“[T]he
difference between acting purposefully (when that concept is properly understood) and
acting knowingly is slight.”).
The cases cited by the Rosemond Court as examples of knowingly active
participation are instructive. See 572 U.S. at 77. In Pereira v. United States, 347 U.S. 1,
12 (1954), the Court found that the defendant had the requisite intent for aiding and abetting
mail fraud when he deceptiv ely obtained a check from the victim knowing that a
confederate would do the actual maili ng to collect on the check. And in Bozza v. United
States, 330 U.S. 160, 165 (1947), the Court upheld a conviction for aiding and abetting the
evasion of liquor taxes becaus e the defendant “helped opera te a clandestine distillery”
while he was aware of the illegal nature of the business.
In each case, the defendant’s purpose of fu rthering the illegal scheme is inferable
from his active participation in, with full knowledge of, the underlying crime. In Pereira,
the defendant’s desire that the check be ma iled was clear from his part in deceiving the
victim and obtaining the check, knowing that the check would later be mailed. 347 U.S. at
12 (“[I]t is also clear that an intent to colle ct on the check would incl ude an intent to use
the mails or to transport the check in interstate commerce.”). And in Bozza, assisting with

C/D-7
a secret distillery operation implied an intent to help the owner evade taxes. 330 U.S. at
165 (“[A] person who actively helps to operate a secret distillery knows that he is helping
to violate Government revenue laws. That is a well known object of an illicit distillery.”).
In short, each defendant’s acti ons showed that he had chosen “to align himself with the
illegal scheme in its entirety.” Rosemond, 572 U.S. at 78.
But the conduct that satisfied active participation in Pereira or Bozza was far more
involved in the underlying scheme than the conduct here. Unlike Bozza, Mendota Heights
is not directly involved in carrying out the illegal scheme: Mendota Heights is not
participating in the transaction between Musta and the cannabis dispensary nor in Musta’s
related possession of the cannabis. Any reimbu rsement would be paid after the purchase
and possession are already complete, and any ongoing possession of that cannabis would
be unaffected by the reimbursement. Unlike Pereira, Mendota Heights is not seeking to
facilitate a criminal act by a confederate. Mendota Heights is not encouraging Musta to
buy or possess cannabis; neith er is it paying her for future purchases ahead of time.
Musta’s past decision to purchase cannabis, and any decision to purc hase cannabis in the
future, is her own. Further, Mendota Heights is doing everything it can to distance itself
from Musta’s purchase and possession of medica l cannabis. Consequently, there simply
is no sign that Mendota Heights has “align[ed ]” itself with Musta’s choice to possess
cannabis or desires in any way to “mak e [any plan of Musta’s] succeed.” Rosemond,
572 U.S. at 78. Accordingly, Mendota Heights lacks the required intent to aid and abet.
The court cites to Garcia v. Tractor Supply Co., 154 F. Supp.3d 1225, 1226 (D.N.M.
2016), to support its conclusi on that Mendota Heights would have the required intent to

C/D-8
aid and abet. This reliance on Garcia is misplaced. Garcia held that an employer was not
required to accommodate an employee’s use of medical cannabis because the New Mexico
Human Rights Act was preempted by federal la w to the extent that the act required the
employer to accommodate the em ployee’s illegal drug use. Id. at 1230. But Garcia did
not rely on impossibility preemption based on a theory of aidi ng and abetting liability. It
relied on obstacle preemption, see id., the form of preemption applied in Emerald Steel
Fabricators, Inc. v. Bu reau of Lab. & Indus. , 230 P.3d 518, 536 (Or. 2010), which is a
theory that the court does not reach and that I will address later. Therefore, Garcia offers
no support for the court’s conclusion that federal law preempts section 176.135,
subdivision 1(a), based on impossibility preemption.
The court also stakes its analysis on the difference between intent and motive. The
court implicitly acknowledges that the compen sation judge’s order may be relevant to a
defense of necessity but insists that the orde r has no relevance to the question of intent.
Notably, a similar criticism was levele d at, and rejected by, the Court in Rosemond. The
Court held that, to be liable for aiding a nd abetting, a defendant must have “advance
knowledge” of the facts constituting the entir e crime such that th e defendant can “do
something with” th at knowledge. Rosemond, 572 U.S. at 78. For example, if an
accomplice to a drug transaction knows nothing of a gun until it appears on the scene, that
accomplice may not be liable for aiding and ab etting a gun crime if there was no realistic
opportunity for him or her to leave the scene. Id. Justice Alito, dissenting in part, accused
the Court of confusing intent to commit an act with the motive for committing an act, id.
at 88 (Alito, J., concurring in part, dissenting in part), but th e Court explained that aiding

C/D-9
and abetting has a “distinctive intent standard” that requires a defenda nt to participate in
the venture as something to be brought about and not just “in some sort associate himself
with the venture.” Id. at 81 n.10 (internal quotation marks omitted).
Here, the record clearly shows that Mend ota Heights has no desire to help Musta
possess cannabis. Neither has Mendota Height s chosen to “align [itself] with the illegal
scheme in its entirety.” Id. at 78. Although Mendota Heights has advance knowledge that
Musta seeks reimbursement for medical canna bis, it reimburses her for this medical
treatment only under the obligati on of state law and at the orde r of a court. I therefore
conclude that the “distinctive intent standard” for aiding and abetting is not met.
The expansiveness of the court’s interpretation of the intent standard for aiding and
abetting is troubling. 2 Mendota Heights would reimburs e Musta only after the fact and
only to fulfill a statutory duty as determined by a court. If that counts as active participation
in Musta’s possession solely because Mendota Heights would be knowingly “financing”
or “facilitating” that possession, then other ac tions thought to be innocent could likewise
trigger criminal liability.
For example, if an employee tells her empl oyer, “I’m going to use my next three
paychecks to buy medical cannabis,” and th e employer pays the employee those three
paychecks, has the employer then knowingly “financed” that employee’s unlawful
possession? It would be absurd to suppose that , in such a situation, state fair labor laws

2 The court tries to shield responsibility for its expans ive interpretation behind the
“authoritative statements” by the Supreme Court in Rosemond. But as I have explained
and other courts of last resort have found, Rosemond by no means compels the
interpretation or result that the court reaches today.

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requiring an employer to pay an employee a minimum hourly wage are partially preempted.
Or, if a bus route passes a cannabis dispensary, and the bus driver knows that a passenger
is on his way to purchase me dical cannabis, has the bus dr iver knowingly “facilitated” a
future possession of cannabis? Is the same true of a taxi driver who knows the purpose of
the trip? Surely those facts alone are not enough to convict the bus or taxi driver of aiding
and abetting the possession of cannabis. If intent is inferable from those circumstances—
which are nothing more than incidental participation in the crime3—then the government’s
burden of proving intent is effectively eliminated.4
The law of aiding and abetting does no t allow for such expansive liability.
Rosemond dictates that the government prove “inten[t] to facilitate that offense’s

3 The Court in Rosemond distinguished between incident al and active participants,
stating that the owner of a gun store, who se lls a gun to a criminal while knowing but not
caring how the gun will be used, would be only an incidental participant in the subsequent
crime. See 572 U.S. at 77 n.8. Although the Cour t declined to decide whether incidental
participants are guilty of aidi ng and abetting an offense, th e logical answer is no. The
whole point of specific intent is that the defendant is aligned with the venture as something
the defendant wishes to bring about. Id. at 76. Incidental participants lack this alignment
and are more like those who are merely associat ed “ ‘in some sort’ ” with a venture than
those who actively participate in bringing the venture about. Id. (citation omitted).
Notably, Mendota Heights is even less involved than the Court’s hypothetical gun
store owner who willingly sells the gun. Mendota Heights would be like a gun store owner
who staunchly refuses to sell the gun to a customer until ordered to do so by a court.

4 The court tries to distinguish the employ er hypothetical by stating that a paycheck
is ordinarily used “for any nu mber of purchases” other than ca nnabis. That distinction is
irrelevant. Under my hypothetical, the payc heck is used to purchase cannabis and,
following the court’s reasoning, the employ er is aiding and abet ting the purchase by
knowingly financing it.
The court tries to distinguish the bus driver hypothetical by stating that the route is
driven “not solely for the benefit of the passenger to obtain cannabis.” But that distinction
resorts to the motive of the driver, an argument which the court itself rejects.

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commission.” 572 U.S. at 76. It is not enough that a person is “in some sort associate[d]”
with the offense; a person must “ ‘participate in it as in something that he wishes to bring
about.’ ” Id. (quoting Nye & Nissen, 336 U.S. at 619). Consistent with the holdings of the
New Jersey and New Hampshire Supreme Courts, I conclude that Mendota Heights does
not have a specific intent to aid Musta in unlawfully possessing cannabis merely by
reimbursing her after the fact based on a court order applying state law. See Hager,
247 A.3d at 889; Appeal of Panaggio, __ A.3d __, 2021 WL 787 021 at *6 (N.H. Mar. 2,
2021).5
III.
Because it is not impossible for Mendota Heights to comply with the compensation
judge’s order and federal law, I next address the question of obstacle preemption. Obstacle
preemption exists when “state law is an obstacle to the accomplishment of the purposes of
the federal scheme.” Martin ex rel. Hoff v. City of Rochester , 642 N.W.2d 1, 11 (Minn.
2002). Under Minnesota’s work ers’ compensation laws, an employer must “furnish any
medical . . . treatment” as “may reasonably be required” to “cure and relieve from the
effects of the injury.” Minn. Stat. § 176.135, subd. 1(a). The question, then, is whether
section 176.135, subdivision 1(a ), stands as an obstacle to the purpose of the Controlled

5 The court claims that, following my reasoning, a state could nullify any federal
specific intent crime by simply passing legislation that commands a person to perform the
criminal act. Not so. A person could still be liable for aiding and abetting an offense if
there were facts demonstrating that the pers on had aligned themselves with the criminal
scheme. Further, even if impossibility preemption did not apply, there would still be a
serious question of obstacle preemption, which is triggered when a state law thwarts
Congress’s intent. As I will explain, obstacle preemption does not exist under the specific
facts of this case, but it may apply if a state attempted what the court describes.

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Substances Act if section 176.135 requires an employer to reimburse an employee for the
purchase of medical cannabis.
“Congressional purpose is the ultimate t ouchstone of the preemption inquiry.”
Gretsch v. Vantium Cap., Inc., 846 N.W.2d 424, 432–33 (Minn. 2014). But preemption is
usually disfavored. Martin, 642 N.W.2d at 11. Because workers’ compensation is
traditionally a matter of state law, I start with the assumption that section 176.135 is not
preempted “ ‘unless that [is] the clear and manifest purpose of Congress.’ ” Cipollone v.
Liggett Grp., Inc. , 505 U.S. 504, 516 (1992) (quoting Rice v. Santa Fe Elevator Corp .,
331 U.S. 218, 230 (1947)) (a lteration in original). The case for preemption is also
particularly weak when Congress knew that state law operated in an area of federal interest,
but “nonetheless decided to stand by both concepts and to tole rate whatever tension there
was between them.” Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 256 (1984).
“The main objectives of the [Controlled S ubstances Act] were to conquer drug
abuse and to control the leg itimate and illegitimate traffic in controlled substances.”
Gonzales v. Raich, 545 U.S. 1, 12 (2005). “Congress was particularly concerned with the
need to prevent the dive rsion of drugs from legitim ate to illicit channels.” Id. at 12–13.
“To effectuate these goals, Congress devised a closed regulatory system making it unlawful
to manufacture, distribute, dispense, or po ssess any controlled substance except in a
manner authorized by the [Act].” Id. at 13.
Consistent with the decisions of courts of last resort in other states, I conclude that
the reimbursement of medical cannabis that is purchased and used within the strictures of
the state’s medical cannabis research program does not stand as an impermissible obstacle

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to the purposes of the Act. As observed by the New Hamp shire Supreme Court, the Act
does not make it illegal for an insurer to reimburse an employee for a purchase of medical
cannabis or purport to regulate insu rance practices in any manner. Appeal of Panaggio ,
2021 WL 787021 at *8. In addition, the co mpensation judge’s order in no way prevents
the federal government from using its own resources to enforce the Act. Id.; see Erwin
Chemerinsky et al., Cooperative Federalism & Marijuana Regulation, 62 UCLA L. Rev.
74, 111–12 (2015) (arguing that, because the federal government cannot commandeer state
legislatures and require them to prohibit cannabis altogether, a state’s regulation of medical
cannabis does not stand as an obstacle to the objectives of the Controlled Substances Act).
Furthermore, as explained by the New Jersey Supreme Court, since 2015, Congress
has prohibited the Department of Justice fr om using its funds to prevent states from
implementing their medical cannabis laws. Hager, 247 A.3d at 886. These appropriation
riders at the very least show that Congress has chosen to “tolerate” the tension between
state medical cannabis laws and the Controlled Substances Act, see Bonito Boats, 489 U.S.
141, 166–67 (1989), and may ev en have eliminated liability under federal law for the
possession of medical cannabis that was permitted under state law during those years, see
Hager, 247 A.3d at 887. For these reasons, I conclude that the high bar for obstacle
preemption is not met.
IV.
In sum, because it is not impossible for Mendota Heights to comply with state and
federal law, and because reim bursing Musta does not stand as an impermissible obstacle
to federal law, I would hold that the section 176.135, subdivision 1(a), is not preempted by

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federal law. Consequently, I would affirm the decision of the Workers’ Compensation
Court of Appeals.
The court has chosen to do otherwise, and the effect of today’s decision is to prevent
Musta and other injured workers who suffer intractable pain from receiving the relief that
medical cannabis can bring. In doing so, th e court frustrates the Legislature’s goal of
providing “quick and efficien t delivery of indemnity and me dical benefits to injured
workers at a reasonable cost to the employer s.” Minn. Stat. § 176. 001 (2020). Because
today’s decision misconstrues the scope of th e specific intent underlying an aiding and
abetting offense—with the effect of denying reimbursement for reasonable and necessary
treatment for injured workers—I respectfully dissent.