1

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the 

Clerk for the convenience of the reader. It has been neither reviewed nor approved by the 

Court. In the interest of brevity, portions of an opinion may not have been summarized.

Vincent Hager v. M&K Construction (A-64-19) (084045)

Argued December 1, 2020 -- Decided April 13, 2021

SOLOMON, J., writing for the Court.

In this appeal, the Court considers the challenges brought by defendant M&K 

Construction (M&K) with regard to a workers’ compensation court’s order (the Order) 

that M&K reimburse plaintiff Vincent Hager for the ongoing costs of the medical 

marijuana he was prescribed after sustaining a work-related injury while employed by 

M&K. Specifically, M&K contends that New Jersey’s Jake Honig Compassionate Use 

Medical Cannabis Act (Compassionate Use Act or the Act) is preempted as applied to the 

Order by the federal Controlled Substances Act (CSA). Compliance with the Order, 

M&K claims, would subject it to potential federal criminal liability for aiding-andabetting or conspiracy. M&K also asserts that medical marijuana is not reimbursable as 

reasonable or necessary treatment under the New Jersey Workers’ Compensation Act 

(WCA). Finally, M&K argues that it fits within an exception to the Compassionate Use 

Act and is therefore not required to reimburse Hager for his marijuana costs.

Hager suffered a back injury while working for M&K in 2001. He underwent 

surgery, but his pain persisted and he continued to take prescribed opioid medication. In 

April 2016, Hager began treating with a hospice and palliative care physician, who 

enrolled Hager in New Jersey’s medical marijuana program both as an alternative pain 

treatment and as a means to wean him off of opioids. Hager’s marijuana prescription cost

him more than six hundred dollars each month.

At a worker’s compensation trial, Hager testified personally, and both he and 

M&K presented testimony by medical experts. Identifying medical marijuana and 

opioids as the only two choices for pain management, the court concluded that 

“marijuana is the clearly indicated option” and ordered M&K to reimburse the costs of 

Hager’s medical marijuana and reasonably related expenses. The compensation court 

rejected M&K’s claim that, like a private health insurer or government medical benefit 

program, M&K could not be required to reimburse the cost of medical marijuana. 

The Appellate Division affirmed, 462 N.J. Super. 146, 153 (App. Div. 2020), and

the Court granted M&K’s petition for certification, 241 N.J. 484 (2020).
2

HELD: M&K does not fit within the Compassionate Use Act’s limited reimbursement 

exception, and Hager presented sufficient credible evidence to the compensation court to 

establish that the prescribed medical marijuana represents, as to him, reasonable and 

necessary treatment under the WCA. Finally, the Court interprets Congress’s 

appropriations actions of recent years as suspending application of the CSA to conduct 

that complies with the Compassionate Use Act. As applied to the Order, the Court thus 

finds that the Act is not preempted and that M&K does not face a credible threat of 

federal criminal aiding-and-abetting or conspiracy liability. M&K is ordered to 

reimburse costs for, and reasonably related to, Hager’s prescribed medical marijuana.

1. The Court first considers whether M&K is exempt from reimbursing Hager for his 

medical marijuana under N.J.S.A. 34:6I-14. The Compassionate Use Act, N.J.S.A. 

24:6I-1 to -30, was enacted by the New Jersey Legislature in 2010 in recognition of the 

beneficial uses of marijuana and to protect authorized individuals from criminal and civil 

penalties. Of relevance to the present matter, the Act provides that reimbursement for 

medical marijuana costs is not required of “a government medical assistance program or

private health insurer.” N.J.S.A. 24:6I-14 (emphasis added). (pp. 13-15)

2. Based that plain language, the Court agrees with the compensation court’s 

determination, affirmed by the Appellate Division, that N.J.S.A. 24:6I-14 does not apply 

to M&K. The Court reads “or” as limiting the applicability of the exception to only the

two kinds of entities named, in accordance with general principles of statutory 

interpretation and the Act’s recognition of the potential health benefits of medical 

marijuana. See N.J.S.A. 24:6I-2(e). That reading, further, is supported by the definition 

of “Health insurance” in the Life and Health Insurance Code, which unambiguously 

states “[h]ealth insurance does not include workmen’s compensation coverages.” 

N.J.S.A. 17B:17-4. In the Court’s view, if the Legislature sought to depart from that

general definition and treat workers’ compensation and private health coverage in the 

same manner under the Compassionate Use Act, it could have expressly included 

workers’ compensation insurance in its exhaustive list or broadened the exception more 

generally, as other states have explicitly done. The Court concludes that the Legislature 

clearly did not intend for workers’ compensation insurers to be treated as private health 

insurers or government medical assistance programs under the Compassionate Use Act. 

M&K is therefore not exempt from its reimbursement obligation. (pp. 15-18)

3. The Court next considers M&K’s argument that medical marijuana is not a 

“reasonable and necessary treatment” for which the WCA provides coverage. The Court 

reviews the legislative history of the WCA, which requires employers to provide “such 

medical, surgical and other treatment . . . as shall be necessary to cure and relieve the 

worker of the effects of the injury” incurred in the course of employment, and specifies 

that all fees for the “treatment shall be reasonable.” N.J.S.A. 34:15-15. Under 

interpretive case law, it must be shown that the chosen treatment is “reasonable” and 

“necessary” to cure or relieve the injury of the worker. A mere showing that the injured 
3

worker would benefit from the treatment is not enough. Nevertheless, palliative care may 

be properly authorized under the WCA, and workers who are permanently disabled and 

beyond hope of being cured are still entitled to continued treatment and services. 

Competent medical testimony that a particular treatment or service will reduce symptoms 

or restore function is sufficient to satisfy the requirement of reasonable and necessary 

care. (pp. 18-20)

4. Like the compensation court and the Appellate Division, the Court concludes that 

medical marijuana may be found, subject to competent medical testimony, to constitute 

reasonable and necessary care under New Jersey’s workers’ compensation scheme. The 

Court reviews Squeo v. Comfort Control Corp., 99 N.J. 588 (1985), which instructs its 

analysis here. In this appeal, the doctors who testified on behalf of Hager convinced the 

compensation court that Hager remains in chronic pain and that ongoing treatment is 

necessary. Identifying medical marijuana and opioids as the two treatment options 

available, the court concluded, after thoughtful consideration of the medical testimony 

discussing the risks and benefits of each, that marijuana was “the clearly indicated 

option.” Reimbursement payments for the cost of Hager’s prescribed medical marijuana 

-- the treatment ordered here -- may not yet be common, but they are certainly less unique 

than the construction of a self-contained apartment, which the Court found appropriate in 

Squeo. Indeed, marijuana’s ability to relieve pain has been expressly recognized by the 

Legislature in the Compassionate Use Act. N.J.S.A. 24:6I-2(a), -3. Thus, competent 

evidence relating to medical marijuana’s ability to restore some of a worker’s function or, 

as in Hager’s case, relieve symptoms such as chronic pain and discomfort, is sufficient to 

find such a course of treatment appropriate. As in Squeo, the Court recognizes the 

potential harm that may be inflicted on Hager by the alternative available treatment; here, 

that would mean opioid treatment and a “likely path . . . [of] worsening addiction and 

ultimately death.” Sufficient credible evidence in the compensation court record --

medical records and hearing testimony -- supported the Order. (pp. 21-23)

5. The Court next considers whether the federal CSA extinguishes M&K’s obligations 

under state law. New Jersey law diverges from federal law not just as to medical 

marijuana but as to its recreational use as well, given New Jersey’s recent legalization of 

recreational marijuana. Notwithstanding New Jersey’s legalization of the medical and 

recreational use of marijuana, the CSA must be considered. The principles of federal 

preemption are rooted in the Supremacy Clause of the United States Constitution, U.S. 

Const. art. VI, cl. 2, which unambiguously provides that if there is any conflict between 

federal and state law, federal law shall prevail. Because the CSA explicitly leaves room 

for state law to operate, see 21 U.S.C. § 903, the Court focuses on conflict preemption, 

which occurs in two scenarios: where it is impossible for a private party to comply with 

both state and federal requirements, and when state law stands as an obstacle to the 

accomplishment and execution of the full purposes and objectives of Congress. The 

Court explains that preemption is not to be lightly presumed and that deciphering 

congressional intent is central to preemption analysis. (pp. 24-29)
4

6. Enacted by Congress in 1970, the CSA replaced a network of drug laws with a 

comprehensive regime, separating controlled substances into five schedules based on 

their accepted medical uses, risk of abuse, and physical and psychological effects. 

Marijuana was placed in the strictest schedule -- Schedule I -- at the time of the CSA’s 

enactment. Substances on Schedule I must be found to have a high potential for abuse, 

no currently accepted use for medical treatment, and a lack of accepted safety measures 

for use under medical supervision. 21 U.S.C. § 812(b)(1). Marijuana remains a Schedule 

I drug today, despite repeated efforts to petition for its rescheduling. Except as otherwise 

authorized, the CSA makes it unlawful to knowingly or intentionally “possess with intent 

to manufacture, distribute, or dispense, a controlled substance.” Id. § 841(a)(1). The 

CSA also makes unlawful, subject to exceptions, the knowing or intentional possession of 

a controlled substance “unless such substance was obtained directly, or pursuant to a 

valid prescription or order, from a practitioner, while acting in the course of his 

professional practice.” Id. § 844(a). (pp. 30-31)

7. The “valid prescription” language contained in § 844(a) cannot, however, apply to 

marijuana because the CSA prevents marijuana from being validly prescribed. On the 

enforcement front, guidance from senior personnel in the Department of Justice (DOJ) to 

the offices of the United States Attorneys issued over the past decade or so has, at times, 

deprioritized -- but not prohibited -- federal prosecution of marijuana activities that are 

legal under state law. More importantly, Congress has also deprioritized prosecution for 

possession of medical marijuana while leaving the CSA otherwise unchanged. In the 

relevant rider to the most recent federal Appropriations Act, Congress prohibited the DOJ 

from using allocated funds to prevent states, including New Jersey, from implementing 

their medical marijuana laws. Similar language has been included in appropriations 

riders dating back to the 2015 federal budget. (pp. 32-35)

8. The tension between Congress’s appropriations riders and the CSA’s classification 

and criminalization of marijuana is manifest. Mindful that preemption analysis turns on 

legislative intent, the Court reviews case law examining whether and under what 

circumstances appropriations acts -- reflecting a shift in intent with respect to earlier 

legislation -- are deemed to impliedly suspend or supplant the earlier law. “[A]lthough 

repeals by implication are especially disfavored in the appropriations context, Congress 

nonetheless may amend substantive law in an appropriations statute, as long as it does so 

clearly.” Robertson v. Seattle Audubon Soc’y, 503 U.S. 429, 440 (1992). The Court 

observes that the federal decisions it has reviewed mirror the Court’s own reading of 

appropriations acts as signifiers of legislative intent to suspend earlier statutory 

enactments in City of Camden v. Byrne, 82 N.J. 133 (1980). The Court noted in Byrne, 

as did the Ninth Circuit in United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016), the 

limited applicability of appropriations laws -- confined to a particular fiscal year -- and 

concluded that their effect on the previously enacted statutes was best expressed as 

implied suspension as opposed to implied repeal. (pp. 36-41)
5

9. Here, the CSA expressly contemplates a role for state law absent a “positive conflict” 

with the CSA. See 21 U.S.C. § 903; see also Gonzales v. Oregon, 546 U.S. 243, 251 

(2006). The Compassionate Use Act seeks to operate in the space afforded to it by 

federal law and federal priorities. Congress has, for seven consecutive fiscal years, 

prohibited the DOJ from using funds to interfere with state medical marijuana laws 

through appropriations riders. Congress is empowered to amend the CSA via an 

appropriations action provided “it does so clearly,” see Robertson, 503 U.S. at 440, and 

the most recent appropriations rider, in the Court’s view, “clearly is intended as a 

substitute” to the CSA as applied to the Compassionate Use Act, see Miccosukee Tribe of 

Indians of Fla. v. U.S. Army Corps of Eng’rs, 619 F.3d 1289, 1299 (11th Cir. 2010). 

Therefore, the Court finds that Congress has spoken through the most recent 

appropriations rider and gives it the final say. (pp. 41-44)

10. The Court concludes that the CSA, as applied to the Compassionate Use Act and the 

Order at issue, is effectively suspended by the most recent appropriations rider for at least 

the duration of the federal fiscal year. Because DOJ enforcement of the CSA may not, by 

congressional action, interfere with activities compliant with the Compassionate Use Act, 

the Court finds that there is no “positive conflict” and that the CSA and the Act may 

coexist as applied to the Order. See 21 U.S.C. § 903. Qualified patients may continue to 

possess and use medical marijuana, and related compensation orders may be entered 

while federal authorities continue to enforce the CSA to the extent Congress permits. 

The federal and state acts can thus consistently stand together, and it is possible for M&K 

to comply with both. The Compassionate Use Act does not currently present an obstacle 

to Congress’s objectives as articulated in the recent appropriations riders, and so the CSA 

does not preempt the Compassionate Use Act as applied to the Order. The Court 

underscores the “temporal nature” of the issue and its dependence on the future acts of 

Congress. See McIntosh, 833 F.3d at 1179. (pp. 44-47)

11. The Court is unpersuaded by M&K’s contention that its compliance with the Order 

would subject it to aiding-and-abetting and conspiracy liability under federal law on the 

theory that it would be assisting in Hager’s possession of marijuana, contrary to the CSA. 

M&K’s payments would not satisfy the specific intent requirement for aiding-andabetting liability when the facts so clearly indicate that it will be reimbursing Hager

against its will and at the behest of the Court. Likewise, to the extent that the Order 

requiring reimbursement payments creates a conspiracy between Hager and M&K, 

M&K’s membership cannot be said to be intentional. Rather, its participation is being 

compelled by the courts. (pp. 47-51)

AFFIRMED.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, 

FERNANDEZ-VINA, and PIERRE-LOUIS join in JUSTICE SOLOMON’S opinion.
1

SUPREME COURT OF NEW JERSEY

A-64 September Term 2019

084045

Vincent Hager,

Petitioner-Respondent,

v.

M&K Construction,

Respondent-Appellant.

On certification to the Superior Court,

Appellate Division, whose opinion is reported at

462 N.J. Super. 146 (App. Div. 2020).

Argued

December 1, 2020

Decided

April 13, 2021

Matthew Gitterman argued the cause for appellant 

(Biancamano & DiStefano, attorneys; James E. 

Santomauro, on the brief).

Victor B. Matthews argued the cause for respondent 

(Victor B. Matthews, on the brief).

Alan Silber argued the cause for amici curiae National 

Organization for the Reform of Marijuana Laws, Garden 

State-NORML, Coalition for Medical Marijuana-NJ and 

Doctors for Cannabis Regulation (Pashman Stein Walder 

Hayden, attorneys; Alan Silber, of counsel and on the 

brief, and Dillon J. McGuire, on the brief).

Elizabeth R. Leong submitted a brief on behalf of amicus

curiae of American Property Casualty Insurance 
2

Association (Robinson & Cole, attorneys; Elizabeth R. 

Leong, on the brief). 

JUSTICE SOLOMON delivered the opinion of the Court.

Vincent Hager injured his back in a work-related accident in 2001 while

employed by M&K Construction (M&K). For years thereafter, Hager received

treatment for chronic pain with opioid medication and surgical procedures to 

no avail. In 2016, he enrolled in New Jersey’s medical marijuana program 

both as a means of pain management and to overcome an opioid addiction. 

Thereafter, a workers’ compensation court found that Hager “exhibit[ed] 

Permanent Partial Total disability” and ordered M&K to reimburse him for the 

ongoing costs of his prescription marijuana (the Order). The Appellate 

Division affirmed.

Before us, M&K contends that New Jersey’s Jake Honig Compassionate 

Use Medical Cannabis Act (Compassionate Use Act or the Act) is preempted 

as applied to the Order by the federal Controlled Substances Act (CSA). 

Compliance with the Order, M&K claims, would subject it to potential federal 

criminal liability for aiding-and-abetting or conspiracy. M&K also asserts that

medical marijuana is not reimbursable as reasonable or necessary treatment 

under the New Jersey Workers’ Compensation Act (WCA). Finally, M&K 
3

argues that it fits within an exception to the Compassionate Use Act and is 

therefore not required to reimburse Hager for his marijuana costs.

We conclude that M&K does not fit within the Compassionate Use Act’s 

limited reimbursement exception. We also find that Hager presented sufficient 

credible evidence to the compensation court to establish that the prescribed 

medical marijuana represents, as to him, reasonable and necessary treatment 

under the WCA. Finally, we interpret Congress’s appropriations actions of 

recent years as suspending application of the CSA to conduct that complies

with the Compassionate Use Act. As applied to the Order, we thus find that 

the Act is not preempted and that M&K does not face a credible threat of 

federal criminal aiding-and-abetting or conspiracy liability. We therefore 

affirm the judgment of the Appellate Division.

I.

A.

The appellate record reveals the facts and procedural history pertinent to 

this appeal, and we begin in August 2001, when Hager was employed as a 

laborer for M&K. While working on a residential basement, Hager sought to 

retrieve cement in a wheelbarrow he was using. Something “like an 

explosion” resulted in the cement truck overpouring cement, “hurl[ing Hager] 

into the air” and “smashing [him] and flattening [him] back out like a 
4

pancake.” Thereafter, Hager experienced sharp back pain that radiated down 

his legs, and he was transferred to light duty. Hager never returned to full duty 

before leaving M&K in December 2001 due to his persistent back pain.

An MRI revealed spinal disc herniations and bulging and, in November 

2003, Hager underwent a laminectomy and decompression of nerve roots in his 

back. He subsequently underwent a two-level lumbar fusion in September 

2011, but his pain persisted and Hager continued to take prescribed opioid

medication.

1

In April 2016, Hager began treating with Dr. Joseph Liotta, M.D., a 

hospice and palliative care physician, who enrolled Hager in New Jersey’s 

medical marijuana program both as an alternative pain treatment and as a 

means to wean him off of opioids. Initially prescribed one ounce per month,

Hager was later prescribed two ounces per month -- the maximum allowable

prescription -- costing him more than six hundred dollars each month.

B.

The procedural history of this matter is somewhat murky and largely 

irrelevant to the issues before us. In sum, Hager petitioned for workers’

compensation benefits in February 2002. M&K denied the claim the following 

1 The record shows that since approximately 2006 Hager has received, in addition 

to any medical benefits that may have been provided by M&K, Supplemental 

Security Income and Medicaid benefits.
5

month, stating that the accident was being investigated. It was not until 

November 2016 that M&K stipulated that Hager was in its employ and 

suffered a work-related injury. The workers’ compensation trial to determine 

the nature and extent of Hager’s work-related injuries, and any unpaid medical 

benefits to which he was entitled began in November 2016 and continued over 

several scattered days until March 2018.

At trial, Hager presented the expert testimony of Dr. Liotta, who 

testified that he had diagnosed Hager with post-laminectomy syndrome 

resulting in chronic pain. Hager was also experiencing adverse side effects 

from his opioid medication, according to Dr. Liotta, and was “motivated” to 

cease its use. Hager stopped using opioids after about a month of treatment 

with marijuana. Dr. Liotta noted a “very weak” risk of chemical addiction to 

marijuana and fewer serious, and potentially fatal, side effects as compared to 

opioids. Also, Hager testified on his own behalf that medical marijuana helped 

wean him off opioids, took “the edge off” his pain, and helped with muscle 

spasms.

Hager also presented the testimony of orthopedist Dr. Cary Skolnick,

M.D., who testified that Hager required long-term pain management due to his

“chronic lumbar strain, lumbar herniated discs[,] . . . [and] post-laminectomy 

syndrome.” Dr. Skolnick attributed Hager’s condition to the August 2001 
6

accident and concluded that he was 100% totally and permanently disabled,

65% attributable to his back injury and 35% attributable to the effects of his 

medication. 

M&K presented the testimony of orthopedic surgeon Dr. Gregory 

Gallick, M.D., who concluded that Hager was only 12.5% permanently 

disabled and still capable of performing jobs such as driving. Dr. Robert 

Brady, D.O., also testified on behalf of M&K and described the potential side

effects of medical marijuana, including cognitive difficulties, hallucinations,

emphysema, chronic obstructive pulmonary disease, and lung cancer. Risks 

associated with opioids, according to Dr. Brady, include overdose, death,

tolerance, depression, and sexual dysfunction. Though Dr. Brady opined that 

opioids are more physically addictive than marijuana, he represented that the 

two are equally psychologically addictive.

Citing medical literature, Dr. Brady testified that he did not prescribe his 

patients medical marijuana and added that medical marijuana had not been 

proven effective for conditions such as Hager’s. Dr. Brady opined that brief 

physical therapy followed by a home-exercise regimen represented Hager’s 

“best option” for relief. Dr. Brady did not recommend continued physician 

treatment or pain management because “[u]nfortunately, sometimes people 

have pain.”
7

C.

At the time of the compensation court’s decision, the parties had already 

reached an agreement regarding medical bills, most out-of-pocket medical 

expenses, temporary disability benefits, and third-party lien credits -- leaving 

the court to determine only the nature and extent of Hager’s permanent 

disability and the necessary course of future treatment. The court concluded 

that Hager “exhibit[ed] Permanent Partial Total disability totaling 65%,

approximately 50% attributable to his orthopedic condition and 15%

attributable to the effects of the medical marijuana.” The court also found no 

support for M&K’s contention that Hager did not require further treatment. 

Identifying medical marijuana and opioids as the only two choices for 

pain management, the court concluded that “marijuana is the clearly indicated 

option” and ordered M&K to reimburse the costs of Hager’s medical marijuana 

and reasonably related expenses. The court found the testimony of Dr. Liotta 

and Hager to be credible as compared to that of Dr. Brady. Also important to 

the compensation court was Hager’s ability to “conquer his addiction” to 

opioids. The court concluded that “the best interests of the injured worker 

must be a prime consideration under our workers’ compensation scheme. It is 

likewise clear that the legislature intended to make available the benefits of 

medical marijuana to persons displaying a medical need, despite the federal 
8

attitude toward the substance.” The compensation court also rejected M&K’s 

claim that, like a private health insurer or government medical benefit 

program, M&K could not be required to reimburse the cost of medical 

marijuana.

The Appellate Division affirmed both the compensation court’s Order 

and, in response to Hager’s cross-appeal, the court’s finding that Hager “had a 

65% permanent partial total disability.” Hager v. M&K Constr., 462 N.J. 

Super. 146, 153, 171-72 (App. Div. 2020). After conducting a thorough 

analysis to determine whether the Compassionate Use Act is preempted by the 

CSA in the context of the Order, the Appellate Division concluded that the Act

did not require employers to do what the CSA proscribes -- possess,

manufacture, or distribute marijuana. Id. at 162-65. Compliance with both 

laws was thus possible, resulting in no positive conflict. Id. at 165. The 

Appellate Division also rejected M&K’s contentions that compliance with the 

Order created potential aider-and-abettor liability that both preempted the 

Compassionate Use Act and placed M&K at risk of federal prosecution for 

assisting in Hager’s possession of marijuana. Id. at 165-67. The court

concluded that M&K lacked the requisite intent and active participation to 

support an aiding-and-abetting charge, and did not face a credible threat of 

federal prosecution. Id. at 166-67.
9

The Appellate Division also rejected M&K’s argument that it should be 

treated like a private health insurer under the Compassionate Use Act and be 

exempt from reimbursing the cost of Hager’s medical marijuana. Id. at 168. 

Finally, citing the testimony of Hager and Drs. Liotta and Skolnick, the court

was satisfied that medical marijuana represents reasonable and necessary 

treatment for Hager. Id. at 170.

We granted M&K’s petition for certification. 241 N.J. 484 (2020). We 

also granted leave to participate as amici curiae to the American Property 

Casualty Insurance Association (APCIA) and to a group of jointly 

participating organizations -- the National Organization for the Reform of 

Marijuana Laws; Garden State - NORML; the Coalition for Medical Marijuana 

- New Jersey; and Doctors for Cannabis Regulation -- which we refer to 

collectively here as “Other Amici.”

II.

Before us, M&K reiterates its position that, as applied to the 

compensation court’s Order, the Compassionate Use Act is in actual conflict

with the CSA because it compels M&K to do what the CSA prohibits -- assist 

in Hager’s possession of marijuana. By reimbursing Hager, M&K argues it 

would be risking federal criminal charges for conspiracy and aiding-andabetting because it will know that Hager is using the reimbursement to pay for
10

medical marijuana. Although the Appellate Division concluded that one 

cannot be liable for aiding-and-abetting a completed crime, M&K notes that 

Hager purchases marijuana on a monthly basis and characterizes the offense as 

ongoing.

M&K also sees no reason to differentiate between private health insurers 

and workers’ compensation insurers; it argues that workers’ compensation 

insurers should be afforded similar protection under the Compassionate Use 

Act and should not be required to reimburse an employee’s medical marijuana 

costs. M&K further contends that medical marijuana is per se an unreasonable 

and unnecessary medical treatment because it is illegal under federal law. It 

adds that marijuana has not been proven to cure or improve back pain and that,

unlike other medications, the quantity of a given dose of marijuana is at the 

discretion of the patient rather than the prescribing physician. 

The APCIA reiterates M&K’s general assertions, urging us to focus our 

attention on the fact that the Order impermissibly requires what federal law 

prohibits and directing our attention to the recent decision of the Maine 

Supreme Court in Bourgoin v. Twin Rivers Paper Co., 187 A.3d 10 (Me. 

2018), which found in favor of a similarly situated employer. Marijuana use,

in addition to having unproven medical value, is inconsistent with the safety 

goals of New Jersey’s workers’ compensation scheme, according to the 
11

APCIA, and affirmance here would hamper employer enforcement of drugfree-workplace policies and efforts to prevent employees from being impaired 

on the job.

Hager counters that the Compassionate Use Act and the CSA are not in 

direct conflict because M&K can comply with both statutes. M&K is not itself 

being asked to engage in conduct violative of the CSA and is not subject to 

liability as an aider-and-abettor because it lacks specific intent, according to 

Hager. Hager adds that M&K faces no credible threat of federal prosecution 

and refers us to the fact that employers and workers’ compensation carriers in 

New Mexico have not faced federal prosecution after being required to 

reimburse employees’ medical marijuana costs. Citing the remedial purpose of 

the WCA and the New Jersey Legislature’s recognition of the medical benefits 

of marijuana in alleviating chronic pain, Hager contends that he is entitled to 

reimbursement.

Other Amici likewise contend that the CSA and the Compassionate Use 

Act are not in conflict because the latter does not interfere with federal 

enforcement of the CSA, and does not require an employer to possess,

manufacture, or distribute marijuana in violation of federal law. They describe 

M&K’s aiding-and-abetting argument as a “legal impossibility” because the 

offense is completed by the time of reimbursement. Stressing that the 
12

compensation court’s finding that marijuana is an appropriate treatment for 

Hager is supported by the medical records and testimony provided, Other

Amici ask us to affirm.

III.

As we turn to M&K’s challenges to the determinations of the 

compensation court, affirmed by the Appellate Division, we are mindful that 

our review of workers’ compensation decisions is “limited to whether the 

findings made could have been reached on sufficient credible evidence present 

in the record.” Hersh v. County of Morris, 217 N.J. 236, 242 (2014) (quoting 

Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 164 (2004)). We 

acknowledge the compensation court’s expertise and the valuable opportunity 

it has had in hearing live testimony, and we thus review its factual and 

credibility findings with “substantial deference.” Goulding v. NJ Friendship 

House, Inc., 245 N.J. 157, 167 (2021) (quoting Ramos v. M & F Fashions,

Inc., 154 N.J. 583, 594 (1998)). However, we review the court’s legal findings 

and construction of statutory provisions de novo. Hersh, 217 N.J. at 243. 

The issues presented in this appeal require consideration of New Jersey’s 

Compassionate Use Act and the WCA on their own terms and in relation to 

one another, as well as the potential impact of the federal CSA on both state 

statutes. We begin by considering M&K’s state-law based claims.
13

IV.

A.

The Compassionate Use Act, N.J.S.A. 24:6I-1 to -30, was enacted by the 

New Jersey Legislature in 2010 in recognition of the beneficial uses of 

marijuana and to protect authorized individuals from criminal and civil 

penalties. Wild v. Carriage Funeral Holdings, Inc., 458 N.J. Super. 416, 427 

(App. Div. 2019), aff’d, 241 N.J. 285 (2020). The Act articulates legislative 

findings that: (1) “[m]odern medical research has discovered a beneficial use 

for cannabis in treating or alleviating the pain or other symptoms associated 

with certain medical conditions”; (2) ninety-nine out of every hundred 

marijuana arrests are made under state law, providing an opportunity to protect 

from arrest many seriously ill individuals in need of marijuana treatment; (3) 

though prohibited under federal law, many other states have legalized medical 

marijuana; and (4) states are not required to enforce federal law, meaning that 

the Act does not place New Jersey in violation of federal law. N.J.S.A. 24:6I2(a) to (d).

Further, the Legislature, through the Act, seeks to make a “distinction 

. . . between medical and non-medical uses” of marijuana -- a distinction that it 

stresses “[c]ompassion dictates.” Id. at -2(e). Accordingly, the Act has “the 

purpose . . . to protect from arrest, prosecution, . . . and criminal and other 
14

penalties, those patients who use cannabis to alleviate suffering from 

qualifying medical conditions, as well as their health care practitioners,

designated caregivers, institutional caregivers, and those who are authorized to 

produce cannabis for medical purposes.” Ibid.; see also Wild, 458 N.J. Super. 

at 427; State v. Myers, 442 N.J. Super. 287, 298 (App. Div. 2015). 

“Qualifying medical condition[s]” include “chronic pain.” N.J.S.A. 24:6I-3.

The Compassionate Use Act, perhaps most notably, applies the 

provisions of N.J.S.A. 2C:35-18 -- which establishes an affirmative defense to 

criminal liability under state law -- to patients, practitioners, caregivers, and 

others operating in accordance with the Act. N.J.S.A. 24:6I-6(a); see also

Wild, 458 N.J. Super. at 427; Myers, 442 N.J. Super. at 300. Similarly,

patients, practitioners, caregivers, and others abiding by the Act cannot be 

subject to any civil or administrative penalties or loss of any right or privilege. 

N.J.S.A. 24:6I-6(b).

In the employment context, the Compassionate Use Act does not alter 

preexisting employment rights and obligations. See Wild, 458 N.J. Super. at 

428 (discussing the Act as it relates to the New Jersey Law Against 

Discrimination). The Act prohibits an adverse employment action against a 

registered patient “based solely on the employee’s status as a registrant.” 

N.J.S.A. 24:6I-6.1(a). However, the Act does not “require an employer to 
15

commit any act that would cause the employer to be in violation of federal 

law, that would result in a loss of a licensing-related benefit pursuant to 

federal law, or that would result in the loss of a federal contract or federal 

funding.” Id. at -6.1(c)(2). 

Of relevance to the present matter, the Act provides that reimbursement 

for medical marijuana costs is not required of “a government medical 

assistance program or private health insurer.” N.J.S.A. 24:6I-14. M&K argues 

that it is exempt from reimbursing Hager for his medical marijuana under that 

provision.

B.

Based on the plain language of the statute, we agree with the 

compensation court’s determination, affirmed by the Appellate Division, that 

N.J.S.A. 24:6I-14 does not apply to M&K.

A provision of the statute, entitled “Construction of act,” specifies in 

relevant part that “[n]othing in [the Compassionate Use Act] shall be construed 

to require a government medical assistance program or private health insurer 

to reimburse a person for costs associated with the medical use of cannabis.” 

Ibid. (emphasis added). We read “or” as limiting the applicability of the 

exception to only those two kinds of entities. See Guttenberg Sav. & Loan 

Ass’n v. Rivera, 85 N.J. 617, 623 (1981) (“The use of the words ‘lessee or 
16

tenant’ indicates the Legislature had in mind those occupants of residential 

dwelling units who had a certain correlative relationship with someone else,

namely, a landlord or lessor. Otherwise the Legislature would have used a 

broader terminology.”). It is “[a] general principle of statutory interpretation . 

. . that ‘exceptions in a legislative enactment are to be strictly but reasonably 

construed, consistent with the manifest reason and purpose of the law.’” Prado 

v. State, 186 N.J. 413, 426 (2006) (quoting Serv. Armament Co. v. Hyland, 70 

N.J. 550, 558-59 (1976)). Here, reading “or” as a limitation to the coverage 

exemption advances the Act’s overarching and compassion-driven recognition 

of the potential health benefits of medical marijuana. See N.J.S.A. 24:6I-2(e). 

The reading, further, is supported by the definition of “Health insurance”

in the Life and Health Insurance Code, which unambiguously states “[h]ealth 

insurance does not include workmen’s compensation coverages.” N.J.S.A. 

17B:17-4. If the Legislature sought to depart from that general definition and 

treat workers’ compensation and private health coverage in the same manner 

under the Compassionate Use Act, it could have expressly included workers’

compensation insurance in its exhaustive list or broadened the exception more 

generally, as other states have explicitly done. See Fla. Stat. § 381.986(15)(f) 

(“Marijuana . . . is not reimbursable . . . .”); 410 Ill. Comp. Stat. 130/40(d) 

(“Nothing in this Act may be construed to require a government medical 
17

assistance program, employer, property and casualty insurer, or private health 

insurer to reimburse a person for costs associated with the medical use of 

cannabis.”); Mich. Comp. Laws § 418.315a (“[A]n employer is not required to 

reimburse or cause to be reimbursed charges for medical marihuana 

treatment.”); Mont. Code Ann. § 39-71-407(6)(c) (“Nothing in this chapter 

may be construed to require an insurer to reimburse any person for costs 

associated with the use of marijuana . . . .”); Okla. Stat. tit. 63 § 427.8(I) 

(“Nothing in this act . . . shall . . . [r]equire an employer, a government 

medical assistance program, private health insurer, worker’s compensation 

carrier or self-insured employer providing worker’s compensation benefits to 

reimburse a person for costs associated with the use of medical marijuana[.]”); 

R.I. Gen. Laws § 21-28.6-7(b)(1) (excepting from the requirement to 

reimburse medical marijuana costs a “workers’ compensation insurer, workers’

compensation group self-insurer, or employer self-insured for workers’

compensation”); Utah Code Ann. § 26-61a-112 (“Nothing in this chapter 

requires an insurer, a third-party administrator, or an employer to pay or 

reimburse for cannabis, a cannabis product, or a medical cannabis device.”). 

We find that the Legislature’s decision not to either list workers’

compensation carriers or generally broaden the exclusion -- while at the same 

time including “chronic pain” as a qualifying medical condition under the Act,
18

N.J.S.A. 24:6I-3, when the WCA covers palliative care, as discussed in the 

next section of this opinion -- places our conclusion here within the clear 

contemplation of the Legislature.

In sum, we conclude that the Legislature clearly did not intend for 

workers’ compensation insurers to be treated as private health insurers or 

government medical assistance programs under the Compassionate Use Act. 

M&K is therefore not exempt from its reimbursement obligation.

V.

A.

We next consider M&K’s argument that medical marijuana is not a 

“reasonable and necessary treatment” for which the WCA provides coverage, 

and we begin with the WCA’s legislative history and purpose. The WCA,

N.J.S.A. 34:15-1 to -146, was enacted in 1911 to compensate workers injured 

in industrial accidents. Richard C. Henke, Workers’ Compensation in New 

Jersey: Toward a Removal of Workers from the Sacrificial Altar of Production 

Quotas, 56 Rutgers L. Rev. 789, 796 (2004). The scope of the WCA thereafter 

expanded over the decades, id. at 796-97, and benefits payable to injured 

workers increased. 

When it was first enacted, the WCA provided for “reasonable medical 

and hospital services and medicines” up to one hundred dollars during the two 
19

weeks following an injury. L. 1911, c. 95, § 14. Today, the WCA requires 

employers to provide “such medical, surgical and other treatment . . . as shall 

be necessary to cure and relieve the worker of the effects of the injury,”

N.J.S.A. 34:15-15, incurred “in the course of employment,” Univ. of Mass. 

Mem’l Med. Ctr., Inc. v. Christodoulou, 180 N.J. 334, 344 (2004). The statute 

specifies that “[a]ll fees and other charges for such physicians’ and surgeons’

treatment and hospital treatment shall be reasonable.” N.J.S.A. 34:15-15. If 

an employer refuses or neglects to provide requested necessary treatment or 

services, the injured worker “may secure such treatment and services as may 

be necessary . . . and the employer shall be liable to pay therefor.” Ibid.

Additionally, the WCA, as enacted and amended, is remedial in nature 

and is to be liberally construed. See, e.g., Squeo v. Comfort Control Corp., 99 

N.J. 588, 604 (1985) (“[T]he construction of an apartment addition may be 

within the ambit of N.J.S.A. 34:15-15.”); Howard v. Harwood’s Rest. Co., 25 

N.J. 72, 88, 94 (1957) (finding that continued nursing-home care was 

“necessary to cure and relieve” the worker’s injuries). Failure to comply with 

a compensation court’s order to pay benefits may lead to imposition of costs,

fines, and other penalties. N.J.S.A. 34:15-28.2.

Still, the treatment or services sought by the injured worker “must be 

shown by competent medical testimony to be such as are reasonable and 
20

necessary for the particular” worker. Howard, 25 N.J. at 93. Such evidence is 

the “touchstone” of determining what is reasonable and necessary. Squeo, 99 

N.J. at 606; accord Martin v. Newark Pub. Schs., 461 N.J. Super. 330, 339 

(App. Div. 2019) (finding that “there was sufficient, credible evidence in the 

record to support the compensation judge’s determination that further 

treatment with opioid medication would not cure or relieve” the worker’s 

condition). The injured worker’s desires or beliefs as to what treatment or 

service will be most beneficial is not determinative. Squeo, 99 N.J. at 606. 

Further, “it must be shown that [the chosen] treatment is ‘reasonable’ and 

‘necessary’ to cure or relieve the injury of the worker. A mere showing that 

the injured worker would benefit from the . . . treatment is not enough.” Raso 

v. Ross Steel Erectors, Inc., 319 N.J. Super. 373, 383 (App. Div. 1999).

Nevertheless, palliative care may be properly authorized under the 

WCA, and workers who are permanently disabled and beyond hope of being 

cured are still entitled to continued treatment and services. Howard, 25 N.J. at 

88, 93-94; Hanrahan v. Township of Sparta, 284 N.J. Super. 327, 333 (App. 

Div. 1995). Competent medical testimony that a particular treatment or 

service will reduce symptoms or restore function is sufficient to satisfy the 

requirement of reasonable and necessary care. Hanrahan, 284 N.J. Super. at 

336.
21

B.

Like the compensation court and the Appellate Division, we too 

conclude that medical marijuana may be found, subject to competent medical 

testimony, to constitute reasonable and necessary care under New Jersey’s 

workers’ compensation scheme. See Howard, 25 N.J. at 93-94. Our decision 

in Squeo instructs our analysis here.

The petitioner in Squeo lost the use of his arms and legs at age twentyfour following a work-related fall; he argued that a self-contained apartment 

attached to his parents’ home could constitute “other treatment” or “other 

appliance” under N.J.S.A. 34:15-15. 99 N.J. at 590-91. We affirmed the 

compensation court’s order in favor of the petitioner, finding “that under 

certain unique circumstances, when there is sufficient and competent medical 

evidence to establish that the requested ‘other treatment’ or ‘appliance’ is 

reasonable and necessary to relieve the injured worker . . . the construction of 

an apartment addition may be within the ambit of N.J.S.A. 34:15-15.” Id. at 

604, 607. In arriving at that conclusion, we looked beyond the petitioner’s 

physical condition and also considered the psychological harm resulting from 

his work-related injuries; that harm was “aggravated” by the then-offered 

treatment -- placement in a nursing home -- which resulted in multiple suicide 

attempts. Id. at 605. 
22

In this appeal, Drs. Skolnick and Liotta persuaded the compensation 

court that Hager remains in chronic pain and that ongoing treatment is 

necessary. Identifying medical marijuana and opioids as the two treatment 

options available, the court concluded, after thoughtful consideration of the 

medical testimony discussing the risks and benefits of each, that marijuana was 

“the clearly indicated option.” Persuasive to the court was marijuana’s ability 

to both provide pain relief and help Hager “conquer his addiction” to opioids.

Reimbursement payments for the cost of Hager’s prescribed medical 

marijuana -- the treatment ordered here -- may not yet be common, but they are

certainly less unique than the construction we found appropriate in Squeo. 

Indeed, marijuana’s ability to relieve pain has been expressly recognized by 

the Legislature in the Compassionate Use Act. N.J.S.A. 24:6I-2(a), -3. Thus,

competent evidence relating to medical marijuana’s ability to restore some of a 

worker’s function or, as in Hager’s case, relieve symptoms such as chronic 

pain and discomfort, is sufficient to find such a course of treatment 

appropriate. See Hanrahan, 284 N.J. Super. at 336.

As in Squeo, we recognize the potential harm that may be inflicted on 

Hager by the alternative available treatment. The compensation court noted 

that the record reflected that treatment with opioids had placed Hager on a 

“likely path . . . [of] worsening addiction and ultimately death.” It favored the 
23

testimony of Hager’s experts over that of M&K’s, which was within its 

discretion to do, that marijuana was comparatively the “appropriate” option to 

address both Hager’s chronic pain and the adverse effects of years of opioid 

use. Rather than “throw [Hager] back to the trash heap,” the court entered its

Order to reimburse Hager’s marijuana use, both to manage his pain and 

support his efforts to overcome his addiction.

We agree with the compensation court and Appellate Division that 

exempting workers’ compensation insurance carriers from responsibility for 

workers’ medical marijuana costs would be antithetical to the Legislature’s 

express findings in the Compassionate Use Act and the traditional broad,

liberal application of New Jersey’s workers’ compensation scheme. Sufficient 

credible evidence in the compensation court record -- medical records and 

hearing testimony -- supported the Order. We will not disturb it. Goulding,

245 N.J. at 167.

Having found that M&K is obliged to reimburse Hager under the 

Compassionate Use Act and the WCA, we next consider whether the federal 

CSA -- which classifies marijuana among the most rigorously controlled 

substances and criminalizes the possession and distribution of marijuana, as 

discussed in Section VI.C. below -- extinguishes M&K’s obligations under 

state law.
24

VI.

A.

We begin our discussion of the intersection of federal and state law here 

with the recognition that New Jersey law diverges from federal law not just as 

to medical marijuana but as to its recreational use as well. Indeed, at present,

New Jersey’s marijuana laws are undergoing a tectonic shift. In November 

2020, New Jerseyans voted to legalize recreational marijuana via constitutional 

amendment by a two-to-one margin. Troy Closson, Marijuana Is Legal in New 

Jersey, but Sales Are Months Away, N.Y. Times (Feb. 22, 2021),

https://www.nytimes.com/2021/02/22/nyregion/new-jersey-marijuanalegalization.html. As of January 1, 2021, the “growth, cultivation, processing,

manufacturing, preparing, packaging, transferring, and retail purchasing and 

consumption of cannabis, or products created from or which include cannabis,

by persons 21 years of age or older . . . shall be lawful and subject to 

regulation by the Cannabis Regulatory Commission.” N.J. Const. art. IV, § 7,

¶ 13. 

In February 2021, Governor Philip D. Murphy signed three bills into 

law, giving practical effect to New Jersey’s marijuana legalization. See Press 

Release: Governor Murphy Signs Historic Adult-Use Cannabis Reform Bills 

Into Law (Feb. 22, 2021), https://nj.gov/governor/news/news/562021/
25

approved/20210222a.shtml. Though the ability to purchase recreational 

marijuana remains months away, the legislation ended arrests for possession of 

small amounts of marijuana, which numbered in the thousands even after the 

amendment’s effective date. Amanda Hoover, Murphy Signs N.J. Legal Weed 

Bills, Ending 3-Year Saga, NJ.com (Feb. 22, 2021), https://www.nj.com/

marijuana/2021/02/murphy-signs-nj-legal-weed-bills-ending-3-year-saga.html.

The most expansive of the three bills, the New Jersey Cannabis 

Regulatory, Enforcement Assistance, and Marketplace Modernization Act,

amended the Code of Criminal Justice to exempt from any criminal or civil 

punishment possession of six ounces or less of marijuana or seventeen grams 

or less of hashish. L. 2021, c. 16, § 56. Possession of greater quantities is a 

fourth-degree offense. Ibid. A separate bill set forth penalties for the 

possession and use of marijuana by those under the age of twenty-one. See S. 

3454 (2021). The new legislation also prohibits state law enforcement from 

cooperating with federal authorities in enforcing the CSA. L. 2021, c. 16, § 

52.

While workers may be drug tested under this new regime, an employer 

may not take adverse action against an employee due to the employee’s 

consumption of marijuana or the presence of cannabinoid metabolites in their 

bodily fluid resulting from permitted conduct. Id. § 48. Presence of such 
26

metabolites may, however, result in penalties or refusal to employ if it causes 

the employer to violate a federal contract or lose federal funding. Id. § 47. 

Those express deferential references to federal law recognize that state law 

may not permit what federal law forbids, a principle as true for our 

recreational use legislation as for our Compassionate Use Act.

B.

Notwithstanding New Jersey’s legalization of the medical and 

recreational use of marijuana, the CSA must be considered because, under the 

Supremacy Clause of the United States Constitution, U.S. Const. art. VI, cl. 2,

“state laws that ‘interfere with, or are contrary to the laws of congress, made in 

pursuance of the constitution’ are invalid.” Puglia v. Elk Pipeline, Inc., 226 

N.J. 258, 274 (2016) (quoting Wis. Pub. Intervenor v. Mortier, 501 U.S. 597,

604 (1991)). The principles of federal preemption are rooted in the Supremacy 

Clause, In re Reglan Litig., 226 N.J. 315, 328 (2016), which “unambiguously 

provides that if there is any conflict between federal and state law, federal law 

shall prevail,” Gonzales v. Raich, 545 U.S. 1, 29 (2005). 

“Pre-emption may be either expressed or implied . . . .” Gade v. Nat’l 

Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992). Congress may choose to 

preempt state law with the express language of an enactment. Franklin Tower 

One, L.L.C. v. N.M., 157 N.J. 602, 615 (1999). In the alternative, there are 
27

two forms of implied preemption: field and conflict. Reglan, 226 N.J. at 328. 

“Field preemption applies ‘where the scheme of federal regulation is “so 

pervasive as to make reasonable the inference that Congress left no room for 

the States to supplement it.”’” Ibid. (quoting Gade, 505 U.S. at 98). Express 

and field preemption do not apply to the present matter, because the CSA 

explicitly leaves room for state law to operate:

No provision of this subchapter shall be construed as 

indicating an intent on the part of the Congress to 

occupy the field in which that provision operates,

including criminal penalties, to the exclusion of any 

State law on the same subject matter which would 

otherwise be within the authority of the State, unless 

there is a positive conflict between that provision of this 

subchapter and that State law so that the two cannot 

consistently stand together.

[21 U.S.C. § 903.]

We therefore focus on conflict preemption. “[I]n the absence of express 

language or implied congressional intent to occupy the field, a court must find 

state law to be preempted ‘to the extent that it actually conflicts with federal 

law.’” Maher v. N.J. Transit Rail Operations, Inc., 125 N.J. 455, 464 (1991)

(quoting Brown v. Hotel & Rest. Emps. & Bartenders Int’l Union Local 54,

468 U.S. 491, 501 (1984)). Conflict preemption requires an actual -- rather 

than hypothetical or speculative -- conflict between federal and state law. 

Feldman v. Lederle Labs., 125 N.J. 117, 135 (1991). 
28

Conflict preemption occurs in two scenarios. First, conflict preemption 

arises “where it is ‘impossible for a private party to comply with both state and 

federal requirements.’” PLIVA, Inc. v. Mensing, 564 U.S. 604, 618 (2011) 

(quoting Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995)). The second 

context in which conflict preemption applies is when “state law ‘stands as an 

obstacle to the accomplishment and execution of the full purposes and 

objectives of Congress.’” Reglan, 226 N.J. at 329 (quoting Gade, 505 U.S. at 

98). “When there is a conflict, ‘the federal law must prevail.’” Feldman, 125 

N.J. at 135 (quoting Free v. Bland, 369 U.S. 663, 666 (1962)). The importance 

of the state law is immaterial to a conflict preemption analysis when a valid 

federal statute is present. Maher, 125 N.J. at 465.

“[P]re-emption is not to be lightly presumed.” Franklin Tower One, 157 

N.J. at 615 (quoting Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 281 

(1987)). “The case for federal pre-emption is particularly weak where 

Congress has indicated its awareness of the operation of state law in a field of 

federal interest, and has nonetheless decided to . . . tolerate whatever tension 

there [is] between them.” Wyeth v. Levine, 555 U.S. 555, 575 (2009) 

(alteration in original) (quoting Bonito Boats, Inc. v. Thunder Craft Boats,

Inc., 489 U.S. 141, 166-67 (1989)).
29

Central to our preemption analysis, therefore, is deciphering 

congressional intent. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208 

(1985) (“[T]he question whether a certain state action is pre-empted by federal 

law is one of congressional intent. ‘“The purpose of Congress is the ultimate 

touchstone.”’” (quoting Malone v. White Motor Corp., 435 U.S. 497, 504 

(1978))). We must approach that task by examining not only the CSA’s plain 

language, see United States v. Clintwood Elkhorn Mining Co., 553 U.S. 1, 11 

(2008), but also “the purposes Congress sought to serve” through its 

enactment, see Chapman v. Hous. Welfare Rts. Org., 441 U.S. 600, 608 

(1979). We must also look beyond the language of the statute to the broader 

framework in which the statute resides. See Village of Ridgefield Park v. 

N.Y., Susquehanna & W. Ry. Corp., 163 N.J. 446, 453 (2000). Ultimately, a 

determination of “[w]hether a state law stands as an obstacle to the 

accomplishment of a federal objective[] requires a court to consider ‘the 

relationship between state and federal laws as they are interpreted and applied,

not merely as they are written.’” R.F. v. Abbott Labs., 162 N.J. 596, 618 

(2000) (quoting Jones v. Rath Packing Co., 430 U.S. 519, 526 (1977)). 

With those principles in mind, we turn to the CSA.
30

C.

Enacted by Congress in 1970, the CSA sought “to conquer drug abuse 

and to control the legitimate and illegitimate traffic [of] controlled 

substances.” Raich, 545 U.S. at 12. The CSA replaced a network of drug laws 

with a “comprehensive regime.” Ibid.; see also 116 Cong. Rec. 33,300 

(statement of Rep. Springer) (“[T]he purpose of this act is to bring together the 

various laws affecting drugs in order to codify and consolidate them. It is 

intended to make enforcement more uniform . . . .”). “Congress intended [for] 

the CSA to strengthen rather than to weaken the prior drug laws.” United 

States v. Moore, 423 U.S. 122, 139 (1975). The CSA separates controlled 

substances into five schedules based on their accepted medical uses, risk of 

abuse, and physical and psychological effects. Raich, 545 U.S. at 13. 

Substances may not be placed on a particular schedule without specific 

findings. 21 U.S.C. § 812(b). The Attorney General is empowered to add,

remove, and reschedule substances, id. § 811(a), and has delegated that 

authority to the Drug Enforcement Administration, United States v. Kelly, 874 

F.3d 1037, 1042 (9th Cir. 2017); 28 C.F.R. § 0.100(b).

Marijuana was placed in the strictest schedule -- Schedule I -- at the time 

of the CSA’s enactment. Raich, 545 U.S. at 14. Substances on Schedule I 

must be found to have a high potential for abuse, no currently accepted use for 
31

medical treatment, and a lack of accepted safety measures for use under 

medical supervision. 21 U.S.C. § 812(b)(1). Marijuana remains a Schedule I 

drug today, id. § 812(c), Schedule I(c)(10), despite repeated efforts to petition 

for its rescheduling, Nation v. Trump, 395 F. Supp. 3d 1271, 1275 (N.D. Cal. 

2019). That original placement reflected concerns among legislators at the 

time about the increasing prevalence of marijuana, particularly among young 

people, see 116 Cong. Rec. 33,649-50 (statements of Reps. Anderson and 

Keith), although not all members of Congress agreed that it warranted such 

classification, see 116 Cong. Rec. 33,660 (statement of Rep. Ryan) 

(“[M]arihuana is found on schedule I with such drugs as heroin, morphine, and 

LSD . . . . [T]he studies which have thus far been completed show that 

whatever harmful effects marihuana may have, they are not comparable to the 

effects of the other drugs on schedule I.”).

Except as otherwise authorized, the CSA makes it unlawful to knowingly 

or intentionally “possess with intent to manufacture, distribute, or dispense, a 

controlled substance.” 21 U.S.C. § 841(a)(1). The CSA also makes unlawful,

subject to exceptions, the knowing or intentional possession of a controlled 

substance “unless such substance was obtained directly, or pursuant to a valid 

prescription or order, from a practitioner, while acting in the course of his 

professional practice.” Id. § 844(a). 
32

The “valid prescription” language contained in § 844(a) cannot,

however, apply to marijuana because the CSA prevents marijuana from being 

validly prescribed. See United States v. Johnson, 228 F. Supp. 3d 57, 62 

(D.D.C. 2017) (citing United States v. Oakland Cannabis Buyers’ Coop., 532 

U.S. 483, 491 (2001)); United States v. Harvey, 794 F. Supp. 2d 1103, 1105-

06 (S.D. Cal.), aff’d, 659 F.3d 1272 (9th Cir. 2011). Thus, marijuana is not 

included in the CSA’s prescription requirements, see 21 U.S.C. § 829, because 

“for purposes of the [CSA], marijuana has ‘no currently accepted medical use’

at all,” Oakland Cannabis Buyers’ Coop., 532 U.S. at 491 (quoting one of the 

Schedule I criteria).

On the enforcement front, guidance from senior personnel in the 

Department of Justice (DOJ) to the offices of the United States Attorneys 

issued over the past decade or so has, at times, deprioritized -- but not 

prohibited -- federal prosecution of marijuana activities that are legal under 

state law. For example, in 2009, Deputy Attorney General David Ogden 

advised United States Attorneys that they “should not focus federal resources . 

. . on individuals whose actions are in clear and unambiguous compliance with 

existing state laws providing for the medical use of marijuana,” but rather 

prioritize larger-scale trafficking operations. Memorandum for Selected 

United States Attorneys 1-2 (Oct. 19, 2009). 
33

Four years later, as state ballot initiatives sought to legalize possession 

of small quantities of marijuana, Deputy Attorney General James Cole 

reiterated the DOJ’s commitment to enforcing the CSA but provided eight 

priorities in light of limited DOJ resources, which included preventing: 

distribution to minors, marijuana revenue from reaching criminal enterprises,

violence or the use of firearms in marijuana cultivation and distribution, and 

growth of marijuana on public lands. Memorandum for All United States 

Attorneys 1-2 (Aug. 29, 2013) (2013 Cole Memo). Cole acknowledged the 

DOJ’s traditional reliance on state and local authorities in addressing lowerlevel marijuana activity through enforcement of their own laws and advised 

that states with strong regulatory and enforcement systems were less likely to 

threaten federal priorities. Id. at 2-3. 

Following the change of administrations, Attorney General Jefferson B.

Sessions, III, advised that “[g]iven the Department’s well-established general 

principles, previous nationwide guidance specific to marijuana enforcement is 

unnecessary and is rescinded, effective immediately.” Memorandum for All 

United States Attorneys 1 (Jan. 4, 2018). Attorney General William Barr 

reversed course to some extent, stating that he was “accepting the Cole 

Memorandum for now,” but that he had “generally left it up to the U.S. 

Attorneys in each state to determine what the best approach is in that state.” 
34

Sara Brittany Somerset, Attorney General Barr Favors A More Lenient 

Approach to Cannabis Prohibition, Forbes (Apr. 15, 2019),

https://www.forbes.com/sites/sarabrittanysomerset/2019/04/15/attorneygeneral-barr-favors-a-more-lenient-approach-to-cannabis-legalization/

?sh=6e82d477c4c8.

Significantly, it is not only the Executive Branch that has muddied the 

waters between state marijuana laws and federal enforcement; more 

importantly, Congress has also deprioritized prosecution for possession of 

medical marijuana while leaving the CSA otherwise unchanged.

In the relevant rider to the most recent federal Appropriations Act,

Congress prohibited the DOJ from using allocated funds to prevent states,

including New Jersey, from implementing their medical marijuana laws. See

Consolidated Appropriations Act, 2021, Pub. L. No. 116-260, § 531, 134 Stat. 

1182, 1282-83 (2020). Specifically, § 531 provides that

[n]one of the funds made available under this Act to the 

Department of Justice may be used, with respect to any 

of the States of Alabama, Alaska, Arizona, Arkansas,

California, Colorado, Connecticut, Delaware, Florida,

Georgia, Hawaii, Illinois, Indiana, Iowa, Kentucky,

Louisiana, Maine, Maryland, Massachusetts, Michigan,

Minnesota, Mississippi, Missouri, Montana, Nevada,

New Hampshire, New Jersey, New Mexico, New York,

North Carolina, North Dakota, Ohio, Oklahoma,

Oregon, Pennsylvania, Rhode Island, South Carolina,

South Dakota, Tennessee, Texas, Utah, Vermont,

Virginia, Washington, West Virginia, Wisconsin, and 
35

Wyoming, or with respect to the District of Columbia,

the Commonwealth of the Northern Mariana Islands,

the United States Virgin Islands, Guam, or Puerto Rico,

to prevent any of them from implementing their own 

laws that authorize the use, distribution, possession, or 

cultivation of medical marijuana.

[Ibid.]

Similar language has been included in appropriations riders dating back 

to the 2015 federal budget, although the list of states and territories with 

medical marijuana legislation has been expanded over the years to reflect new 

enactments. See Consolidated Appropriations Act, 2020, Pub. L. No. 116-93,

§ 531, 133 Stat. 2317, 2431 (2019); Consolidated Appropriations Act, 2019,

Pub. L. No. 116-6, § 537, 133 Stat. 13, 138 (2019); Consolidated 

Appropriations Act, 2018, Pub. L. No. 115-141, § 538, 132 Stat. 348, 444-45 

(2018); Consolidated Appropriations Act, 2017, Pub. L. No. 115-31, § 537,

131 Stat. 135, 228 (2017); Consolidated Appropriations Act, 2016, Pub. L. No. 

114-113, § 542, 129 Stat. 2242, 2332-33 (2015); Consolidated and Further 

Continuing Appropriations Act, 2015, Pub. L. No. 113-235, § 538, 128 Stat. 

2130, 2217 (2014); see also United States v. Kleinman, 880 F.3d 1020, 1027 

(9th Cir. 2017) (noting that the riders for the years 2015 through 2017 were 

“essentially the same” (quoting United States v. Nixon, 839 F.3d 885, 887 (9th 

Cir. 2016))).
36

It appears from the Congressional Record that the impetus for these 

riders has its origins in the Tenth Amendment -- reserving to the states powers 

not granted to the federal government -- and they reflect Congress’s intention 

to limit the role of federal policy in matters of criminal justice. See 160 Cong. 

Rec. H4878 (daily ed. May 28, 2014) (statement of Rep. Rohrabacher) (“It 

should be disturbing to any constitutionalist that the Federal Government 

insists on the supremacy of laws that allow for the medical use of marijuana.”). 

These continuing riders have “changed” federal law by prohibiting the DOJ 

“from spending appropriated funds to prosecute individuals who are acting in 

compliance with their State’s medical marijuana laws” and “restrict[ing] the 

Federal Government from superseding State law when it comes to the use of 

medical marijuana.” 163 Cong. Rec. H311 (daily ed. Jan. 11, 2017) (statement 

of Rep. Rohrabacher). 

The tension between Congress’s appropriations riders and the CSA’s 

classification and criminalization of marijuana is manifest. Mindful that 

preemption analysis turns on legislative intent, see Lueck, 471 U.S. at 208, we 

turn to case law examining whether and under what circumstances 

appropriations acts -- reflecting a shift in intent with respect to earlier 

legislation -- are deemed to impliedly suspend or supplant the earlier law.
37

D.

In considering the effect of the recent appropriations riders on the CSA 

as applied to the Order, we find particularly instructive guidance from the 

United States Supreme Court and several circuit courts. See Glukowsky v. 

Equity One, Inc., 180 N.J. 49, 64 (2004) (“[T]he principle of comity instructs 

state courts to give due regard to a federal court’s interpretation of a federal 

statute.”).

For example, in United States v. Dickerson, the Supreme Court stated 

that “[t]here can be no doubt that Congress could suspend or repeal [an] 

authorization . . . and it could accomplish its purpose by an amendment to an 

appropriation bill, or otherwise.” 310 U.S. 554, 555 (1940); accord United 

States v. Will, 449 U.S. 200, 222 (1980). And “although repeals by 

implication are especially disfavored in the appropriations context, Congress 

nonetheless may amend substantive law in an appropriations statute, as long as 

it does so clearly.” Robertson v. Seattle Audubon Soc’y, 503 U.S. 429, 440 

(1992) (citation omitted); see also Me. Cmty. Health Options v. United States,

590 U.S. ___, 140 S. Ct. 1308, 1323-27 (2020) (concluding that Congress’s 

failure to fund Patient Protection and Affordable Care Act obligations did not 

impliedly repeal the ACA). Harmonizing conflicting statutes is preferred, but 

courts are not required to “approach the statute[s] with blinders and reconcile 
38

them at all costs, even when the second enactment is an appropriations 

measure.” Preterm, Inc. v. Dukakis, 591 F.2d 121, 133 (1st Cir. 1979).

Though it did not discuss implied repeal, United States v. McIntosh

tasked the Ninth Circuit with resolving an issue similar to the one at hand --

determining whether the 2016 appropriations rider prohibiting DOJ 

interference with state medical marijuana laws prevented the DOJ from 

prosecuting activities allegedly compliant with state law. 833 F.3d 1163,

1168-70 (9th Cir. 2016). The court concluded that it did, stating that “at a 

minimum, [the rider] prohibit[ed the] DOJ from spending funds from relevant 

appropriations acts for the prosecution of individuals who engaged in conduct 

permitted by the State Medical Marijuana Laws and who fully complied with 

such laws.” Id. at 1176-77. In so concluding, the Ninth Circuit recognized the 

“temporal nature” of the issue -- Congress could restore funding for such 

prosecutions any day or never again -- but concluded that, if the DOJ sought to 

continue prosecuting the appellants, the appellants were entitled to evidentiary 

hearings to determine whether they strictly complied with state law. Id. at 

1179; see also Tin Cup, LLC v. U.S. Army Corps of Eng’rs, 904 F.3d 1068,

1073 (9th Cir. 2018) (“There is . . . ‘a very strong presumption’ that if an 

appropriations act changes substantive law, it does so only for the fiscal year 

for which the bill was passed.” (quoting Bldg. & Constr. Trades Dep’t, AFL-
39

CIO v. Martin, 961 F.2d 269, 273 (D.C. Cir. 1992))); Strawser v. Atkins, 290 

F.3d 720, 734 (4th Cir. 2002) (“‘Where Congress chooses’ to amend 

substantive law in an appropriations rider, ‘[courts] are bound to follow 

Congress’s last word on the matter even in an appropriations law.’” (quoting 

City of Los Angeles v. Adams, 556 F.2d 40, 49 (D.C. Cir. 1977))). 

Those federal decisions ring familiar because they mirror our own 

reading of appropriations acts as signifiers of legislative intent to suspend 

earlier statutory enactments. See City of Camden v. Byrne, 82 N.J. 133, 154-

55 (1980). In Byrne, a collection of municipalities and counties brought 

actions against Governor Brendan T. Byrne, the Legislature, and other 

government officials for failure to appropriate and expend state funds allotted 

by several statutes to municipalities and counties. Id. at 141-44. The 

allocations were not made because they were excluded from the Legislature’s 

general appropriations acts or eliminated by Governor Byrne’s line-item veto. 

Id. at 142-44. 

After discussing the constitutional issues implicated in the matter, we 

moved to the defendants’ contention that the statutes had been suspended,

supplanted, or repealed by the subsequent passage of annual appropriations 

acts, which intentionally excluded the expenditures. Id. at 153. The 

appropriations acts and original statutes were irreconcilable because they made 
40

different uses of the same limited funds. Ibid. Although we recognized a 

strong presumption against any implied nullification of statutes, we concluded 

that “this presumption may be overcome when there is a clear showing that 

two legislative measures are patently repugnant or inconsistent.” Id. at 154. 

To so find, we looked to the intent of the Legislature. Ibid.

Applied to the facts presented in Byrne, we found that the failure to

appropriate the funding called for in the statutes was an intentional act of the 

Legislature, as was its decision not to override the Governor’s line-item 

vetoes. Ibid. Such unmistakable legislative intent reflected in the 

appropriations laws “necessarily supersede[d] any previously expressed 

legislative desires at least for the duration of the particular appropriation act.” 

Ibid. We thus read the appropriations acts as the manifested intent of the 

Legislature to give no effect at all to the earlier statutes, stating that “[t]he 

earlier statutes [could not] coexist with the enacted appropriation and,

consequently, must be deemed [to have been] suspended by adoption of the 

later appropriation acts.” Id. at 154-155. 

We noted, as well, the limited applicability of appropriations laws --

confined to a particular fiscal year -- and concluded that their effect on the 

previously enacted statutes was best expressed as implied suspension as 

opposed to implied repeal, even though that limitation did not change our 
41

general analysis. Id. at 153-54; see also McIntosh, 833 F.3d at 1179 

(recognizing the “temporal nature” of Congress’s appropriations rider as 

applied to DOJ enforcement of the CSA). Our courts continue to recognize 

appropriations acts as expressions of legislative intent. See Guaman v. Velez,

421 N.J. Super. 239, 258 (App. Div. 2011); Mid-Atl. Solar Energy Indus. 

Ass’n v. Christie, 418 N.J. Super. 499, 505-06 (App. Div. 2011).

E.

With federal case law and Byrne as our guides to deciphering 

congressional intent here, we conclude that it is possible for M&K to abide by 

both the CSA and the Compassionate Use Act at the present time, and that the 

latter does not currently create an obstacle to the accomplishment of 

congressional objectives. As such, the Compassionate Use Act is not 

preempted by the CSA as applied to the Order. 

The perceived tension, as stated, stems from the Order entered against 

M&K. See N.J.S.A. 34:15-28.2 (providing for penalties that may be imposed 

on employers and insurers that fail to comply with compensation court orders). 

Though the Compassionate Use Act shields those acting in compliance with its 

provisions from criminal liability, see N.J.S.A. 24:6I-6(a), marijuana 

possession remains illegal under federal law, 21 U.S.C. §§ 841(a), 844(a). 

This despite Congress’s present will to defund DOJ actions that prevent states 
42

from implementing their own medical marijuana laws, Consolidated 

Appropriations Act, 2021, Pub. L. No. 116-260, § 531, 134 Stat. 1182, 1282-

83 (2020), including prosecuting those complying with state law, see

McIntosh, 833 F.3d at 1176-77. 

Byrne instructs us to read statutes and subsequent appropriations acts in 

tandem. To do as M&K asks -- to focus purely on whether state law permits 

and, in this case, demands what federal law forbids -- would be to completely 

disregard the most recent expression of Congress’s intent in its appropriations 

acts. See Strawser, 290 F.3d at 734. We find that doing so would be 

incongruous with the task before us and do not so limit ourselves here. We 

must also consider the broader framework in which the statutes exist. See

Village of Ridgefield Park, 163 N.J. at 453. 

Here, the CSA expressly contemplates a role for state law absent a 

“positive conflict” with the CSA. See 21 U.S.C. § 903; see also Gonzales v. 

Oregon, 546 U.S. 243, 251 (2006) (discussing Schedule II controlled 

substances). DOJ guidance has acknowledged both federal prosecutors’

historic reliance on state and local laws and law enforcement in addressing 

lower-level marijuana offenses and the fact that state marijuana laws generally 

do not conflict with federal investigative and prosecutorial priorities. 2013 

Cole Memo, supra, at 2-3. The Compassionate Use Act thus seeks to operate 
43

in the space afforded to it by federal law and federal priorities. See N.J.S.A. 

24:6I-2(c) to (d) (noting the collection of other states that have enacted similar 

medical marijuana programs and finding that the Act does not place New 

Jersey in violation of federal law).

Congress has, for seven consecutive fiscal years, prohibited the DOJ 

from using funds to interfere with state medical marijuana laws through 

appropriations riders. The present rider and its predecessors have “changed”

federal law and “restrict[ed] the Federal Government from superseding State 

law when it comes to the use of medical marijuana.” See 163 Cong. Rec. 

H311 (daily ed. Jan. 11, 2017) (statement of Rep. Rohrabacher). The rider 

language leaves “no doubt” as to its effect by “forbid[ding] the use of funds”

to interfere with state medical marijuana schemes. See The Last Best Beef, 

LLC v. Dudas, 506 F.3d 333, 339-40 (4th Cir. 2007) (holding that “Congress 

intended to enact a discrete and narrow exception to the Lanham Act” via an 

appropriations action). Despite McIntosh’s inviting correction by Congress,

833 F.3d at 1179 (“If Congress intends to prohibit a wider or narrower range 

of DOJ actions, it certainly may express such intention, hopefully with greater 

clarity, in the text of any future rider.”), those riders have used substantially 

the same language year after year. It appears to us that this repeated language 

is Congress speaking with complete awareness of McIntosh and absolute 
44

approval of its reasoning. See 163 Cong. Rec. H311 (daily ed. Jan. 11, 2017) 

(statement of Rep. Rohrabacher) (“Importantly . . . the Ninth Circuit Court of 

Appeals ruled in [McIntosh] that Federal funds cannot be used to prosecute 

those in compliance with their State’s medical marijuana laws. This provision 

will be part of American law as long as it is renewed and Congress makes it 

part of the law.”). Congress is empowered to amend the CSA via an 

appropriations action provided “it does so clearly,” see Robertson, 503 U.S. at 

440, and the most recent appropriations rider, in our view, “clearly is intended 

as a substitute” to the CSA as applied to the Compassionate Use Act, see

Miccosukee Tribe of Indians of Fla. v. U.S. Army Corps of Eng’rs, 619 F.3d 

1289, 1299 (11th Cir. 2010). Therefore, we find that Congress has spoken 

through the most recent appropriations rider and give it the final say. 

Strawser, 290 F.3d at 734; Adams, 556 F.2d at 48-49.

We thus conclude that the CSA, as applied to the Compassionate Use 

Act and the Order at issue, is effectively suspended by the most recent 

appropriations rider for at least the duration of the federal fiscal year and that 

it would be “inappropriate for this Court to give any legal effect whatsoever to 

the earlier statutory enactment[].” Byrne, 82 N.J. at 154-55. “The earlier 

statute[] cannot coexist with the enacted appropriation and, consequently, must 

be deemed to be suspended by adoption of the later appropriation act[].” Id. at 
45

154. We repeat that “[t]he case for federal pre-emption is particularly weak 

where Congress has indicated its awareness of the operation of state law in a 

field of federal interest, and has nonetheless decided to . . . tolerate whatever 

tension there [is] between them.” Wyeth, 555 U.S. at 575 (second alteration in 

original) (quoting Bonito Boats, Inc., 489 U.S. at 166-67). 

As in Byrne, we find here that this clear, volitional act in the form of 

appropriations law takes precedence over the earlier legislation. Because DOJ 

enforcement of the CSA may not, by congressional action, interfere with 

activities compliant with the Compassionate Use Act, we find that there is no 

“positive conflict” and that the CSA and the Act may coexist as applied to the 

Order. See 21 U.S.C. § 903. Qualified patients may continue to possess and 

use medical marijuana, and related compensation orders may be entered while 

federal authorities continue to enforce the CSA to the extent Congress permits. 

The federal and state acts can thus “consistently stand together,” see ibid., and 

it is possible for M&K to comply with both, see Mensing, 564 U.S. at 618. 

The Compassionate Use Act does not currently present an obstacle to 

Congress’s objectives as articulated in the recent appropriations riders, see

Reglan, 226 N.J. at 329, and so the CSA does not preempt the Compassionate 

Use Act as applied to the Order. As we have previously recognized, and we 

find to be the case here with respect to the recent appropriations riders’ effect 
46

on the CSA, “legislative intent through appropriation actions . . . sometimes 

speak[s] louder than words.” State v. Cannon, 128 N.J. 546, 568 (1992). 

We acknowledge that our decision here departs from the holdings of 

other state supreme courts that have come to different conclusions when faced 

with the precise issue before us -- whether state medical marijuana laws are 

preempted as applied to workers’ compensation orders compelling employers 

to reimburse workers’ medical marijuana costs. See Bourgoin, 187 A.3d at 22 

(“Because the CSA preempts the [Maine Medical Use of Marijuana Act] when 

the [Act] is used as the basis for requiring an employer to reimburse an 

employee for the cost of medical marijuana, the order based on the [Act] must 

yield.”); Wright’s Case, 156 N.E. 3d 161, 175 (Mass. 2020) (concluding that 

the plain language of the state reimbursement limitation provision prohibited 

compelling workers’ compensation insurers to reimburse the cost of medical 

marijuana).

We are urged to follow suit with Bourgoin and Wright’s Case. 

However, while we may find their reasoning instructive, they in no way bind 

our Court or predetermine our analysis. See Matthews v. City of Atl. City, 84 

N.J. 153, 162 (1980). Our decision today is consonant with our reading of the 

relevant federal authorities and our settled principles of preemption analysis 

and deciphering legislative intent.
47

Additionally, after oral argument, the New Hampshire Supreme Court 

concluded that there is “no direct conflict” between the CSA and a state order 

to reimburse a worker’s medical marijuana costs and that reimbursement did 

not represent an obstacle to congressional objectives. Appeal of Panaggio, ___ 

A.3d ___, ___ (N.H. 2021) (slip op. at 6, 11). Agreeing with the Bourgoin

dissent and our Appellate Division’s decision in this case, Panaggio also found 

that the insurer would lack the active participation and mens rea necessary for 

aiding-and-abetting liability, id. ___ (slip op. at 8), which we will address in 

the next section.

We close by repeating the “temporal nature” of the issue before us and 

its dependence on the future acts of Congress. See McIntosh, 833 F.3d at 

1179. Funding to support federal prosecution of those acting within the scope 

of the Compassionate Use Act may be restored soon, or never again. We 

regard the CSA as suspended, rather than repealed, with respect to orders like 

the one at issue here because the appropriations rider on which we rely is of a 

limited lifespan and may be repeated, removed, or changed within the year. 

See Byrne, 82 N.J. at 153. 

F.

Our preemption analysis notwithstanding, we address M&K’s contention 

that its compliance with the Order would subject it to aiding-and-abetting 
48

liability under 18 U.S.C. § 2 on the theory that it would be assisting in Hager’s 

possession of marijuana, contrary to the CSA. M&K counters the Appellate 

Division’s conclusion “that ‘one cannot aid and abet a completed crime,’”

Hager, 462 N.J. Super. at 166 (quoting United States v. Ledezma, 26 F.3d 636,

642 (6th Cir. 1994)), by claiming that the offense at issue here is ongoing as 

opposed to completed. It similarly argues that its compliance risks conspiracy 

liability under 21 U.S.C. § 846. We are unpersuaded.

“To aid and abet a crime, a defendant must not just ‘in some sort 

associate himself with the venture,’ but also ‘participate in it as in something 

that he wishes to bring about’ and ‘seek by his action to make it succeed.’” 

Rosemond v. United States, 572 U.S. 65, 76 (2014) (quoting Nye & Nissen v. 

United States, 336 U.S. 613, 619 (1949)). Proof is required “that the 

defendant had the specific intent to facilitate the crime.” United States v. 

Centeno, 793 F.3d 378, 387 (3d Cir. 2015). To support an aiding-and-abetting 

conviction, “the Government must prove: ‘(1) that another committed a 

substantive offense; and (2) the one charged with aiding and abetting knew of 

the commission of the substantive offense and acted to facilitate it.’” Ibid.

(quoting United States v. Mercado, 610 F.3d 841, 846 (3d Cir. 2010)). 

“[W]hether he participates with a happy heart or a sense of foreboding” is of 
49

no matter, provided the accomplice “knowingly elected to aid in the 

commission of” the offense. Rosemond, 572 U.S. at 79-80 (emphasis added).

By the very nature of its appeals to both the Appellate Division and this 

Court, M&K has made it clear that it does not wish to “participate” and “act[] 

to make . . . succeed” the federal offense in question here -- Hager’s 

possession of marijuana. It has gone to great pains to avoid facilitating an 

offense. We trust that our affirmance of the compensation court’s Order will 

not change M&K’s position. Likewise, reimbursing Hager under court 

mandate can hardly be interpreted as M&K “elect[ing]” to aid in Hager’s 

possession of marijuana, contrary to federal law. Rather, it is being compelled 

to do so by the Order.

Even accepting M&K’s contention that the court-mandated 

reimbursement payments constitute an ongoing offense in which the 

reimbursement for one illegal purchase and possession enables the next, it fails 

to show -- and we strain to find -- how its compliance with the Order exhibits a 

specific intent to aid-and-abet Hager’s marijuana possession. M&K’s position 

that it faces aiding-and-abetting liability because it will reimburse Hager while 

knowing what the funds will be used for does not persuade us that it satisfies

the specific intent requirement when the facts so clearly indicate that it will be 

doing so against its will and at the behest of this Court.
50

M&K’s argument that compliance with the Order places it at risk of 

conspiracy liability must also fail for similar reasons. Any individual who 

conspires to commit an offense prohibited by the CSA “shall be subject to the 

same penalties as those prescribed for the offense.” 21 U.S.C. § 846. A 

conspiracy charge under § 846 “can only be sustained if the defendant 

‘knowingly and intentionally became a member of the conspiracy.’” United 

States v. Ruiz, 932 F.2d 1174, 1182 (7th Cir. 1991) (quoting the Seventh 

Circuit’s Pattern Criminal Federal Jury Instructions for conspiracy). “[T]he 

government must show . . . that the alleged conspirators shared a ‘unity of 

purpose[,’] the intent to achieve a common goal, and an agreement to work 

together toward the goal.” United States v. Korey, 472 F.3d 89, 93 (3d Cir. 

2007) (quoting United States v. Cartwright, 359 F.3d 281, 286 (3d Cir. 2004)). 

Again, we are unable to discern a “unity of purpose” from M&K’s 

repeated attempts to disassociate itself from Hager’s marijuana possession and 

use. The parties are of two competing minds on the subject and M&K went as

far as to present testimony before the compensation court that Hager does not 

require any treatment at all -- let alone the ongoing prescription of medical 

marijuana. Likewise, to the extent that the Order requiring reimbursement 

payments creates a conspiracy between Hager and M&K, M&K’s membership 
51

cannot be said to be intentional. Rather, its participation is being compelled 

by the courts.

VII.

The judgment of the Appellate Division is affirmed. M&K is ordered to 

reimburse costs for, and reasonably related to, Hager’s prescribed medical 

marijuana.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, 

PATTERSON, FERNANDEZ-VINA, and PIERRE-LOUIS join in JUSTICE 

SOLOMON’S opinion.