The U.S. Supreme Court could be wading into marijuana laws, as it signals some interest in a legal dispute around workers’ compensation coverage for medical cannabis — and it wants one of the government’s top lawyers to weigh in.
The U.S. Supreme Court on Feb. 22 invited the Solicitor General Elizabeth Prelogar to file a brief in Susan K. Musta vs Mendota Heights Dental Center, et al., (Case A20-1551), to express the views of the United States.
Daniel Epps, a law professor and U.S. Supreme Court specialist at Washington University in St. Louis, told MarketWatch the court typically calls for the views of the solicitor general (CVSG) a number of times each term.
“It’s not super rare for the court to ‘CVSG’….,” he said. “But it does suggest significant interest in the case. A good number of CVSG’d cases are ultimately granted, though certainly not all.”
In November, Susan K. Musta filed a petition in November for a writ of certiorari for the U.S. Supreme Court to consider her case.
When working as a dental hygienist in 2003, she suffered a back injury when she tried to catch an elderly patient who was falling, according to her petition.
She began purchasing cannabis to treat chronic pain in 2019 under Minnesota’s legal medical cannabis program and did not get reimbursed for it under her workers’ compensation coverage for workplace injuries.
Musta and her lawyers approached the U.S. Supreme Court after Minnesota courts ruled that the federal Controlled Substances Act prevented her insurer from paying for medical cannabis. Under federal law, cannabis remains an illegal, Schedule I drug with no therapeutic benefits. In a separate case, the Maine Supreme Judicial Court agreed with Minnesota and concluded that federal law preempted any insurance payments.
However, the New Hampshire Supreme Court and the New Jersey Supreme Court have reached the opposite conclusion, and said insurers should pay, lawyers for the case noted.
“This court should grant certiorari to resolve the conflict of authority on this important and recurring question of federal law,” said Musta’s legal team of Thomas D. Mottaz and Cheri M. Sisk of Mottaz & Sisk Injury Law, with counsel of record Adam G. Unikowsky of Jenner & Block LLP. “More generally, courts have been bedeviled with difficult questions regarding how to apply state marijuana laws in the shadow of the federal prohibition on marijuana.
“As more and more states legalize and regulate medical and recreational marijuana, cases raising these questions will multiply. This court’s guidance on this important issue is urgently needed,” the petition said.
The respondents argued that the case was a “poor vehicle” for review by the U.S. Supreme Court because the former employer of the plaintiff, Mendota Heights Dental Center, is no longer in business.
They also said laws around cannabis continued to change quickly, which could make any ruling irrelevant.
“The legal framework regarding marijuana use is currently evolving at a rapid pace, which could at any moment alter or eliminate key building blocks for any decision in this matter and potentially render the decision itself moot,” said respondent Jonathan Freiman of Wiggin and Dana LLP, lawyer for the insurer, Hartford Casualty Insurance Co, a unit of Hartford Financial Services Group Inc.
Meanwhile, a supporting brief for the plaintiff from cannabis proponent Empire State NORML said that the U.S. Supreme Court could settle the dispute by finding that the Schedule I status of cannabis under the Controlled Substances Act is no longer enforceable.
“This pernicious chafing of state medical marijuana laws bumping up against the Schedule I designation of cannabis under the federal Controlled Substances Act, for the past 25 years, without proper attention and care, is the root cause,” said David C. Holland of New York City, a lawyer for Empire State NORML.
Holland told MarketWatch he was aware of only one major case taken up by the U.S. Supreme Court involving cannabis, Gonzales vs. Raich, back in 2005. The court’s ruling cited interstate commerce laws and said Congress may prohibit the production and use of homegrown cannabis even if allowed under state law.
Justice Clarence Thomas cited that 2005 case in comments he made last year when the U.S. Supreme Court declined to review Standing Akimbo vs. U.S. As part of that decision, Thomas commented on the current state of cannabis laws on the federal scale:
“Once comprehensive, the federal government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana,” Thomas said last year. “This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary.”
Law professor Epps of Washington University said he hasn’t spent significant time reviewing the Musta case in Minnesota, but he pointed out that the core of the case focuses less on de-scheduling cannabis and more on whether current federal law pre-empts state laws on workers compensation claims.
“The court [could] answer that question narrowly without touching on whether marijuana should be scheduled differently, which I would think is a matter for the Executive Branch,” Epps said.
At last check, 37 states allow medical marijuana including Mississippi, which OK’d it last month. Eighteen of those states allow adult use of cannabis.
Despite 2005’s Gonzalez Vs. Raich ruling that allows federal preemption of state laws based on interstate commerce rules, Congress has taken a different path since then.
In 2014, Congress passed a measure called the Rohrabacher-Farr Amendment, which prohibits federal law enforcement resources from using federal funds to prosecute state-compliant cannabis operators and their patients. The measure was also included in the 2020 consolidated appropriations act signed by President Donald Trump.
On the other hand, Congress has not passed the SAFE Banking Act although it’s been approved by the U.S. House of Representatives six times but stalled in the Senate.