By: Michael H. Sampson, Esq.
In a June 18, 2020 opinion, the Pennsylvania Supreme Court unanimously ruled that a county’s probation agency could not prohibit individuals under its supervision from using medical marijuana consistent with the Commonwealth’s Medical Marijuana Act (the “MMA” or the “Act”). Although its specific holding was limited, the Supreme Court’s decision in Gass v. 52nd Judicial District, Lebanon County, No. J-42-2020 (Pa. June 18, 2020), likely will have broader implications. At a minimum, the Court’s opinion can be read to suggest that the status of marijuana under federal law – it is still illegal – should not, and will not, be a determining factor in any medical marijuana-related disputes, including insurance coverage and other commercial ones, pending in the Commonwealth’s courts.
In Gass, the Supreme Court observed that “in Pennsylvania, as elsewhere, the political branch has decided to permit patients – including probationers – to use medical marijuana for specified, serious medical conditions, upon a physician’s certification.” Accordingly, the Court held, probationers are entitled to the “immunity accorded by” the Act. “Per the statute,” the Court explained, ”no such individual ‘shall be subject to arrest, prosecution or penalty in any manner, or denied any right or privilege, … solely for lawful use of medical marijuana … or for any other action taken in accordance with this act.’”
In reaching its decision, the Court was not swayed by the judicial district’s argument “that the use of medical marijuana conflicts with the general conditions of probation and parole in Lebanon County, which require compliance with all state and federal criminal laws and prohibit the possession and use of alcohol and ‘any legal or illegal mind/mood altering chemical/substance’” (emphasis in the original).
Rather, the Court opined:
As to the general conditions’ prohibition against violations of federal law, while possession and use of marijuana remains illegal under federal law even for medical purposes, Petitioners correctly observe that the federal Controlled Substances Act [(the “CSA”)] does not (and could not) require states to enforce it. Moreover, through a continuing series of appropriations enactments since 2014, Congress has prohibited the United States Department of Justice from utilizing allocated funds to prevent states from “implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”
Congress’s approach evinces a respect for the core principle of federalism recognizing dual sovereignty between the tiers of government. In enacting the MMA, the Pennsylvania Legislature proceeded pursuant to its independent power to define state criminal law and promote the health and welfare of the citizenry. While the circumstances are certainly uneasy — since possession and use of medical marijuana remains a federal crime — we find that the [judicial district] cannot require state-level adherence to the federal prohibition, where the General Assembly has specifically undertaken to legalize the use of medical marijuana for enumerated therapeutic purposes (internal citations omitted).
That discussion largely squared with the probationers’ argument. The Court explained: “With reference to the federal Controlled Substances Act, Petitioners assert that federal law has no bearing on the [p]olicy validity, since the District has no legal basis to require that medical marijuana patients comply with federal prohibitions where the Pennsylvania General Assembly has specifically displaced the prior state-law analogue. According to Petitioners, reliance on federal law to supersede the MMA would undermine Pennsylvania’s sovereignty” (internal citations and footnote omitted).
Although arguably dicta, the Court’s analysis – prioritizing state law permitting the use over medical marijuana over federal law to the contrary – nevertheless could apply equally in many other contexts, including commercial ones. For example, some commercial contracts, including certain commercial insurance policies, require one or more of the contracting parties to comply with all applicable law. By way of another example: Certain insurance policies preclude coverage for “contraband, or property in the course of illegal transportation or trade” or for any “criminal act, fraudulent act, dishonest act.” Per the Gass Court’s rationale, so long as a marijuana-related business/policyholder is acting in accordance with the Commonwealth’s medical marijuana laws then that business should be deemed to be complying with applicable law. Its medical marijuana should not be deemed to be contraband. And, that business should not be deemed to be engaged in a criminal act.
Pursuant to Gass, marijuana’s status under federal law should not be material to any such analysis. As the Court observed recently: “Congress’s approach evinces a respect for the core principle of federalism recognizing dual sovereignty between the tiers of government. In enacting the MMA, the Pennsylvania Legislature proceeded pursuant to its independent power to define state criminal law and promote the health and welfare of the citizenry.” Those words should be as applicable in the civil, commercial context as they are in the criminal context.
Only time will tell, of course, but, in Gass, the Supreme Court, if nothing else, at least seems to have reinforced the notion that federal illegality should not, and likely will not, undermine the enforcement of medical-marijuana-related commercial arrangements in the Commonwealth. In the meantime, Leech Tishman’s Cannabis Goup will continue to monitor legal developments in this area and is prepared to assist clients embroiled in medical-marijuana-related commercial disputes.
If you have any questions regarding this case or its implications, please contact Michael H. Sampson. Michael is a Partner at Leech Tishman and Co-Chair of the firm’s Cannabis Group. He is also Chair of Leech Tishman’s Insurance Coverage Group and a member of the firm’s Litigation Practice Group. Michael is based in the Pittsburgh office and can be reached at 412.261.1600 or firstname.lastname@example.org.
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Leech Tishman Fuscaldo & Lampl is a full-service law firm dedicated to assisting individuals, businesses, and institutions. Leech Tishman offers legal services in alternative dispute resolution, aviation & aerospace, bankruptcy & creditors’ rights, cannabis, construction, corporate, employee benefits, employment, energy, environmental, estates & trusts, family law, government relations, immigration, insurance coverage, intellectual property, international legal matters, litigation, real estate, and taxation. Headquartered in Pittsburgh, PA, Leech Tishman also has offices in Chicago, Los Angeles, New York, Sarasota and Wilmington, DE.