HAVE AP PEERPS COUNSEL. MATTHEW GITTERMAN: MATTHEW GITTERMAN
DEINSTEAD OF NAN KNOWN BEHALF OF THE APPELLANT M&K CONSTRUCTION.
VICTOR B. MATTHEWS: GOOM, JUSTICES, VICTOR MATTHEWS ON BEHALF OF THE RESPONDENT
VINCENT HAGER. ALAN SILBER: GOOM, ALAN SILVER FROM PASHMAN STEIN
ON BEHALF OF A MEEK CAN YOU SAY COMPANY LIGS FOR MEDICAL MARIJUANA IN NEW JERSEY,
DOCTORS FOR CANNABIS REGULATION AND NATIONAL ASSOCIATION FOR REFORM OF
MARIJUANA LAWS BOTH THE NATIONAL ORGANIZATION AND NEW JERSEY CHAPTER.
CHIEF JUSTICE RABNER: GOOM COUNSEL AND COUNSEL, MR. GITTERMAN PLEASE GO AHEAD.
MATTHEW GITTERMAN: THANK YOU. MAY IT PLEASE THE COURT, OF
AT 1ST I WOULD LIKE TO RESERVE FOR REBUTTAL 2 MINUTES. CHIEF
JUSTICE RABNER: THAT'S FINE. MATTHEW GITTERMAN: THANK YOU. PARTY
PRIOR TO I WAS READING OBVIOUSLY CASES ON MEDICAL MARIJUANA AND ON PROEFL
I'M NOT SURE IF YOUR HONOR IS DID READ THE CASE BUT THERE'S A RECENT CASE THAT WAS
DECIDED ON OCTOBER 27TH GI THE MASSACHUSETTS SUPREME COURT, IT'S
CALLED DANIEL RIGHTS CASE, THE CITE OF THE CASE IS S J C 12873 AND HONESTLY, I
PROBABLY COULD NOT PUT IT ANY BETTER THAN THE JUSTICES OF THE MASSACHUSETTS S
UPREME COURT PUT UT IN THEIR DECISION THAT SAID THEY CALLED THE CURRENT
LEGAL LANDSCAPE OF MEDICAL MARIJUANA LAW A HAZY AND I CERTAINLY AGREE WITH THAT
S MARIJUANA IS OBVIOUSLY ILLEGAL UNDER THE FEDERAL LAW, THE CONTROLLED
SUBSTANCES ACT CSA, CLASSIFIES MARIJUANA AS A SCHEDULE I DRUG. THE CSA MAKING
A CRIME TO NOIGLY OR INTENTIONALLY MANUFACTURE, DISTRIBUTE OR DISPENSE
OR SUS VS MANUFACTURE DISPENSE MARIJUANA, THE CSA MAKE, IT A CRIME TO NOIGLY OR
INTENTIONALLY POSSESS A CONTROLLED SUBSTANCE, AND IT'S ON SUBJECTS, CRIMINAL
PROSECUTION CAN BE BROUGHT AGAINST A PRINCIPLE HOOVER CHITS THE CRIME
OR ANY INDIVIDUAL OF THAT AIDS OR ABETS OR WILLFULLY CAUSES ITS COMMISSION.
AND I SUBMIT TO YOUR HONOR'S THAT BY JUDGE DI VOL CHECKS ORDER
IN THIS CASE, JUDGE DI VOL CHECK WAS THE WORKERS' COMPENSATION JOUCH THAT THE
TRIAL PRESIDED BEFORE. THAT CHI VAL CHECK OS ESSENTIALLY CONSTRUCTION
IF I INDICATE CONSTRUCTION OR ACTUAL FOLLOWS THE ORDER IN IF A SILL SAT THE
COMMISSION OF A CRIME. THERE'S NO DIFFERENCE WHETHER M&K
CONSTRUCTION OR THE INSURANCE COMPANY FOR M&K CONSTRUCTION REIMBURSING
MR. HAGER FOR THE MEDICAL MARIJUANA AS OPPOSED TO IF M&K OR THE INSURANCE
COMPANY WERE PAYING THE DISPENSE SORRY DIRECTLY. OF WHETHER THE PAYMENT IS DIRECT
OR INDIRECT IT'S STILL THE PAYMENT IS FOR MARIJUANA, IT'S KNOWINGLY FOR
MARIJUANA, AND AS A RESULT IT'S FRAUD. WHEN I APPEARED BEFORE THE APPELLATE
DIVISION, THE APPELLATE DIVISION FOUND AGAINST US AND WERE RELIED ON
THE COMPLETED CRIME AND BASICALLY THEY FOUND THAT BY PAYING FOR THE MARIJUANA
AFTER THE FACT THAT M AND KFLT WOULD NOT BE AIDING OR A BETTING THE
COMMISSION OF A CRIME. WHILE I CERTAINLY AGREE WITH THEM THAT YOU CANNOT AID
OR A BET A COMPLETED CRIME, I RESPECTFULLY DISAGREE WITH THEIR ANALYSIS OF
THIS PARTICULAR SITUATION. A PROMISE OF FUTURE REIMBURSEMENT
IN AND OF ITSELF ASSISTS IN THE ACT OF COMMITTING THE CRIME. THE PROMISE
AND COURAGES A FUTURE ACT. IN THIS PARTICULAR INSTANCE, M&K WOULD BE ASKED TO
CONTINUE TO PAY MR. HAGER OR REIMBURSE MR. HAGER OVER AND OVER AND OVER
AGAIN FOR HIS PURCHASES OF MARIJUANA. THEREFORE IT IS NOT A COMPLETED CRIME
AND IT'S AND UNKNOWING CRIME AND AS A RESULT OF THAT, I RESPECTFULLY SUBMIT
THAT THE APPELLATE DIVISION'S REASONING WAS FAULTY IN THIS CASE.
REGARDLESS OF HOW A PROSECUTORS EXERCISE ENFORCEMENT OF DISCRETION, THEY CAN'T
CHANGE WHAT FEDERAL LAW IS. FEDERAL LAW IS THAT MARIJUANA IS ILLEGAL.
AND BECAUSE OF THAT, THE ORDER OF JUDGE RI CHOL CHECK TREE YATS A SITUATION WHERE
M&K IS ASKED TO VIOLATE FEDERAL LAW AND I CERTAINLY RECOGNIZED IT IN JERSEY
JUST RATIFIED MARIJUANA THROUGH A BALLOT AND THEY CERTAINLY RECOGNIZE THE MEDICAL
MARIJUANA ACT IS LAW, BUT BUT RS YOU KNOW, AS INKATSD IN THE
MASSACHUSETTS DECISION, THE LANGUAGE IN THE MEDICAL MARIJUANA ACT AND
SPECIFICALLY ON PAGE 10 OF THE MASSACHUSETTS DECISION, THEY QUOTE NEW
JERSEY'S MEDICAL MARIJUANA ACT AND THEY QUOTE THE LANGUAGE IN THE ACT
AND INDICATE THAT WHILE CERTAINLY MR. HAGER CAN DECIDE TO USE MEDICAL MARIJUANA
UNDER THE NEW JERSEY ACT, MR. HAGER IS SUBJECTING HIMSELF TO THE
POSSIBILITY OF FEDERAL PROSECUTION AND WHILE MR. HAGER CAN CERTAINLY MAKE THAT
DECISION TO SUBJECT HIMSELF TO THAT CRIMINAL PROSECUTION, IT'S IMPROPER FOR JUDGE
KI CHOL CHECK TO REQUIRE M&K CONSTRUCTION TO SUBJECT THEMSELVES
TO THE PROSECUTION. CHIEF JUSTICE RABNER: MAY I ASK YOU A
QUESTION. AIDING AND A BETTING IS A SPECIFIC INTENTS CRIME. IF AN EMPLOYER SFR
MAKING A PAYMENT BECAUSE A COURT HAS ORDERED THEM TO DO SO, DOES THAT EMPLOYER
HAVE THE NECESSARY INTENT TO BE AID ERR OR A BET TER? MATTHEW
GITTERMAN: I OBJECT THE DOES, YOUR HONOR, I BELIEVE THAT BY ONLY A MAKING A
PAYMENT, REIMBURSING MR. HAGER OR NOT THAT THAT CONSTITUTES THE CRIME
OF AIDING AND A BETTING MR. HAGER IN HIS EVER FORTS TO SECURE THE MARIJUANA.
THAT'S REEL THE SUBJECT OF TODAY. I ALSO JUST LIKE TO ADD THAT, YOU
KNOW, WORKERS' COMPENSATION ATTORNEY, MY CLIENTS REGULARLY PROVIDE FRPT TREATMENT
AND ALL NIE YEARS OF DOING THIS E MY CLIENTS ALWAYS PAY THE PROVIDERS
DIRECTLY. BY JUDGE KI VOL CHECK ASKING M&K TO REIMBURSE MR. HAGER FOR THE MARIJUANA,
OBVIOUSLY THE JUDGE RECOGNIZED M AND CAN COULD NOT PAY THE DISPENSARY
BECAUSE THAT CREATES OTHER PROBLEMS AND IT JUST BRINGS TO SHOW THAT THIS IS NOT
EITHER FEDERAL -- MEDICAL MARIJUANA ACT. BUT IT CREATES A SITUATION WHERE
POTENTIAL CONFLICT AND SPREM SEE CLAUSE, NEW JERSEY REALLY CAN'T REQUIRE ANY
INSMURNS COMPANY TO PROVIDE MR. HAGER WITH REIMBURSEMENT. I
ALSO WANT TOED A. JUSTICE ALBIN: MR. MATTHEW
GITTERMAN: SPECIALS IN HARRISBURG PEN YASHGS LICENSED TO DO BUSINESS IN NEW JERSEY,
WORKERS' COMPENSATION PURPOSES. AND AGAIN THEY SENT A CHECK FOR
HARRISBURG PENNSYLVANIA TO MR. HAGER IN NEW JERSEY, THAT CHECK CROSSES STATE LINES
AND COULD IMPLICATE THEM IN A FEDERAL CRIME. JUSTICE ALBIN:
MR. GITTERMAN. WE'RE DEALING WITH CONFLICT REEM SHUN, CORRECT? PREEMPTION,
CORRECT? SO WE KNOW THAT THERE ARE MANY STATES NOW THAT HAVE MEDICAL
MARIJUANA LAWS AND WE ALSO KNOW THAT THERE ARE MANY STATES THAT PASS LAWS
PERMITTING THE USE OF RECREATIONAL MARIJUANA, CORRECT? CORRECT?
MATTHEW GITTERMAN: CORRECT. YOU'RE BRAGING UP ON MY FEED.
JUSTICE ALBIN: YOU'VE BEEN BREAKING UP, MY APOLOGIES. ARE YOU AWARE OF ANY EFFORT
BY THE DEPARTMENT OF JUSTICE TO PROSECUTE ANYONE IN ANY JURISDICTION
WHERE MEDICAL MARIJUANA IS LAWFUL AND NOW WE'RE, THE USE OF RECOLLECTION ROW
YAGS NULL MARIJUANA IS LAWFUL, ARE YOU AWARE OF ANY? MATTHEW
GITTERMAN: I APOLOGIZE JUDGE NO, RESPECTFULLY I SUBMIT TO YOUR HONOR BECAUSE
-- JUSTICE ALBIN: THAT LEADS TO MY QUESTION ABOUT COULDN'T
BREE EM SHUN, RHYME TRYING TO SET IT UP, IT'S CLEAR IF WE LAY THE CSA OF RIGHT
NEXT TO THE LAW, THERE'S A CONFLICT IN THE WRITTEN. SDIT MAKE A DIFFERENCE
THAT THERE IS, IT DOESN'T SEEM TO BE ANY REALISTIC POSSIBILITY, LIKELIHOOD, BASED
UPON EXPERIENCE IN WHAT WE KNOW IS GOING ON AROUND THE COUNTRY, THAT
THE FEDERAL GOVERNMENT HAS ANY INTENTION OF PROSECUTING ANY OF THESE CASES?
AND IN ANSWERING THIS QUESTION ALSO TAKING INTO CONSIDERATION THE RAUR
BACKER A AMENDMENT IN WHICH THE FEDERAL GOVERNMENT HAS NOT FUNDED THE DEPARTMENT
OF JUSTICE MONEY TO PROSECUTE ANY OF THESE CASE. I MEAN SHOULD WE TAKE
ALL OF THAT INTO CONSIDERATION IN DETERMINING WHETHER OR NOT COULDN'T FLEKT PRE
EMPTION APPLIES IN THIS CASE? (CONFLICT) ARE. MATTHEW GITTERMAN:
I DON'T THINK WE CAN PICK AND CHOOSE WHAT LAWS TO FOLLOW AND WHAT LAWS NOT TO
FOLLOW. I UNDERSTAND WHAT YOU'RE SAYING. ABOUT FEDERAL GOVERNMENT
HAS NOT PROSECUTED MARIJUANA. HOWEVER, UNDER THE MOST RECENT MEMORANDUM PERTAINING
TO THE ISSUE, ISSUED BY MR. SESSIONS, HE RESERVE THE RIGHT TO PROSECUTE.
SO I RESPECTFULLY SUBMIT THAT IT IS IRRELEVANT WHETHER THE FEDERAL GOVERN P
HAS PROSECUTED OR WHETHER WE THINK THEY'RE GOING TO PROSECUTE GOING
FORWARD. THE FACT IS THAT MEDICAL MARIJUANA, RECOLLECTION ROW YAGS NULL
MARIJUANA, VIOLATES THE CSA AND DOES CREATE FEDERAL FRAUD.
JUSTICE LAVECCHIA: MR. GIT MAN I TAKE FROM THE YOUR RESPONSE TO JUSTICE AL BEGIN
THAT YOU SEE NO PRACTICALITY THE ASPECT OR ELEMENT TO THE CONFLICT ANALYSIS
IN THIS COURT SHOULD ENGAGE IN. BECAUSE THAT IS THE HEART OF WHAT JUSTICE ALBIN
IS GETTING TO, WITH THE APPROPRIATIONS ACT ACTIVITY AND THE LACK OF ANY
STEPS TAKEN TO BRING FEDERAL PROSECUTIONS, ARE WE TO IGNORE THE PRACTICAL KNOWLEDGE
THAT WE CAN GLEAN FROM THAT INFORMATION THAT THERE IS IN FACT NO CONFLICT BY
NEW JERSEY ENFORCING ITS MEDICAL MARIJUANA LAW? MATTHEW
GITTERMAN: CONFLICT CREATION IN AND OF ITSELF DOESN'T LOOK TO WHETHER THE FEDERAL
GOVERNMENT, YOU KNOW, HAS OR WILL PROSECUTE. BUT THE FACT IS THERE'S
A CONFLICT IN THE LAWS. AND BY REQUIRING THE EMPLOYER IN NEW JERSEY TO
VIOLATE THAT LAW, WHETHER THE FEDERAL GOVERNMENT, I MEAN, WE URNG, I WAS
ING THATTING ABOUT THIS BECAUSE I KNEW YOUR HONOR'S IS GOING TO ASK ME THIS QUESTION,
AND I WAS THINKING ABOUT THISHGS I MEAN THINK ABOUT THIS, I MEAN 30
YEARS AGO OR, YOU KNOW, WHENEVER OPEN OPEN YOIDZ CAME FORWARD T EVERYBODY 1 FELD
OH PEE YOIDZ WERE GREAT, THEY WERE PHENOMENON MULL. OPEN YOIDS, ON
MARIJUANA ARE OBVIOUSLY NOT PERMITTED TO THE FDA APPROVED. OBVIOUSLY BECAUSE
IT'S A, YOU KNOW, IT'S A DRUG, A ILLEGAL DRUG UPT THE CSA, MOST PART THE EN
STUDIES ARE ALL BEING DONE BY THE MARIJUANA INDUSTRY. THERE ARE A FEW
STUDIES, THERE WASN'T ARTICLE IN OCTOBER IN NEW YORK TIMES THAT CITED TO A STUDY
NF MEDICAL JOURNAL THAT TALKED ABOUT HOW, YOU KNOW, MEDICAL MARIJUANA
AND SPECIFICALLY SMOKING MEDICAL MARIJUANA COULD HAVE A FIVE FOLD EFFECT OF
CAUSING HEART ATTACKS AS OPPOSED TO JUST SMOKING CIGARETTES. IT CAN
CAUSE LUNG CANCER. SUPPOSE, YOU KNOW -- JUSTICE LAVECCHIA: WE'RE
NOT THEORY ARGUE THE MERITS AVENUE POLICY THAT HAS BEEN ADOPTED BY THE
PEOPLE OF NEW JERSEY AND ACTED ON BY THE NEW JERSEY LOICH CHER. SO LET'S GO BACK
TO THE QUESTION OF THIS CASE. WHICH IS WHETHER OR NOT YOUR CLIENT IS AT RISK
AS YOU SAY OF FEDERAL PROSECUTION BECAUSE THAT IS THE CRUX OF YOUR
DEFENSE TO THIS WORKERS' COMP. JUDGMENT. I WANT TO FOLLOW UP ON A QUESTION THAT
THE CHIEF JUSTICE HAS ASKED YOU WITH REGARD TO AIDING AND A BETTING
BEING THE SPECIFIC INTENTS CRIME. THE NEW JERSEY LAW AND I WANT TO FOCUS ON
NEW JERSEY LAW HAS SAID THAT HEATH INSURE ERS ARE NOT REQUIRED TO COMPLY
WITH THE MEDICAL MARIJUANA LAW. ANOTHER IS ESSENTIALLY THE MEDICAID PROGRAM.
SO THE STATE HAS NOT REQUIRED MEDICATE TO MEDICAID TO REIMBURSE FOR MEDICAL
MARIJUANA AND IT'S NOT REQUIRE K HEALTH INSURERS TO ENTER INTO FIRST PART CONTRACTS
WITH INDIVIDUALS WHO WISH TO PURCHASE HEALTH INSURANCE TO PROVIDE COVERAGE
FOR HEALTH BENEFITS THAT INCLUDE NEEDING TO TAKE MEDICAL MARIJUANA.
BUT WHAT WE HAVE HEEFR AND WHAT THE CHIEF JUS HIS'S QUESTIONS FOR ME YOU'RE A
THIRD PARTY SITUATION. WORKERS' COMP. IS PAYING ON A JUDGMENT. YOOR A THIRD
PARTY PAYER, NOT A FIRST PARTY PAYER. SO YOU DON'T FIT WITHIN ANYTHING
THAT HAS TO DO WITH HEALTH INSURANCE, YOU'RE SIMPLY PLAYING ON A JUDGMENT THAT
YOUR CLIENT, THE EMPLOYER OF MR. HAGER, OWES TO PROVIDE MEDICAL BENEFITS
AS A RESULT OF MR. HAGER'S INJURIES. SO HOW DO YOU FIT INTO
A SPECIFIC INTENT TO OF AID AND A BET WHEN YOU'RE IN THAT SITUATION? I SEE
IT AS WE MOVED. HIG HIG. MATTHEW GITTERMAN: THE MASSACHUSETTS
SUPREME COURT A DOCHTED IT, THE MAINE SUPREME COURT ADOPTED SIMILAR
FINDINGS. JUSTICE LAVECCHIA: AND SO HAVE OTHER COURTS GONE
THE OTHER WAY. MATTHEW GITTERMAN: NEW MEXICO HAS GONE THE
ODD WASHGS RIGHT NOW I'M OPENLY AWARE OF THREE SUPREME COURT DECISIONS THROUGHOUT
THE COUNTRY, MEXICO, YOU KNOW, FOUND AGAINST ME, MAINE AND MASSACHUSETTS FOUND
FOR ME. BUT I SUBMIT TO YOUR HONOR THAT, YOU KNOW, THERE IS NO QUESTION
IN MY MIND THAT ARE TELLS THEM RECEIPTS, THAT THEY ARE A BETTING AND BEING COMMISSION
OF A CRIME. VEK THAT DOESN'T MAKE THE SO, I'M HAVING A DIFFICULT TIME
UNDERSTANDING HOW PAYING ON A JUDGMENT, ESSENTIALLY A TORT JUDGMENT BECAUSE THE
WORKERS' COMP. SYSTEM REPLACES THE NEED TO BRING A TORT ACTION IN SUPERIOR
COURT, BY PAYING ON A TORT JUDGMENT THAT SOMEHOW YOU'RE AIDING AND A BETTING.
MATTHEW GITTERMAN: I MEAN, YOU'RE STILL PAYING FOR MARIJUANA.
IT MAKES A POOR JUST OR COURT JUDGMENT OR NOT, REBUTTAL IS A FEDERAL PROSECUTION
AND THERE COULD BE A FEDERAL PROSECUTION. JUSTICE
LAVECCHIA: YOUR CLIENT ESSENTIALLY WANTS TO BE FREED OF ITS JUDGMENT OBLIGATION
HERE, CORRECT? MATTHEW GITTERMAN: I'M SORRY.
JUSTICE LAVECCHIA: YOUR CLIENT WANTS TO BE FREED UP OF HIS JUDGMENT OBLIGATION.
GIT FWIT MY CLIENT IS WILLING TO PROVIDE MR. HAGER WITH APPROPRIATE
MEDICAL TREATMENT AND HAS OFFERED TO PROVIDE MR. HAGER WITH PAIN MANAGEMENT
TREATMENT TO WHICH HE HAS NOT AVAILED HIMSELF. JUSTICE
LAVECCHIA: PLUS THAT ARGUMENT IN WOK KERS COMP. MATTHEW
GITTERMAN: YOU LOST THAT ARGUMENT IN WORKERS' COMP.. THE ALTERNATIVE MEDICAL,
PLAN THAT YOU WERE PROPOSING. MEDICAL MARIJUANA THAT'S A LOSS. BUST
I'M SUBMITTING TO YOU I PAYING MR. GOOD HAGER MEDICAL MARIJUANA FRAUD.
JUSTICE LAVECCHIA: I SUGGESTION THERE'S A BIG QUESTION IF IT'S BEFORE THIS
COURT. JUSTICE ALBIN: MR. GITTERMAN GOING BACK TO ANY OTHERING
AND A BETTING, CAN SOMEONE BE FOUND GETTING OF AIDING AND A BITTING IF THEY HAVE
A PAY YO NET AT THEIR BACK TO DO SOMETHING? (BAYONET) SPLUN HS A
BAYONET AT SOMEONE'S BACK AND TOLD DO THIS, DO YOU THINK THAT'S AN AID ERR AND
A BET TER? MATTHEW GITTERMAN: YOU MEAN POINTED A THEIR BACK.
JUSTICE ALBIN: SOMEONE HAS A PAY NET AT THEIR BACK AND THEY'RE
TOLD THIS WHAT I WANT YOU TO DO (BAYONET), IS THAT PERSON I HAD AIDING AND A
BETTING? MATTHEW GITTERMAN: THAT PERSON WOULD HAVE A DEFENSE.
THEY'RE OBVIOUSLY ASKING THEM TO, AL AIM I'M USING IT AS A MET FOR. IS AN ORDER
FROM THE COURT FROM THE WORKERS' COMP. COURT AND THEN FROM THE APPELLATE
DIVISION ANY DIFFERENT THAN A BAYONET AT SOMEONE'S BACK? MATTHEW
GITTERMAN: LET ME ASK YOU THISHGS I UNDERSTAND YOUR POINT AND IT'S A VALID POINT.
BUT AS I SIT HERE TODAY, IF ANY OF YOU JUS TISZ WERE IN MY POSITION, COULD
YOU TELL YOUR CLIENT THAT THEY WILL NOT BE PROSECUTED FEDERAL AND LEGITIMATELY
ADVICE THEM. ANYTHING COULD HAPPEN, A WEEK FROM NOW, THERE COULD BE
A RUN ON PEOPLE BUYING FOR MARIJUANA AND ALL THE SUDDEN FEDERAL GOVERNMENT DECIDE
WE'RE GOING TO START PROSECUTING. JUSTICE ALBIN: YOU ASKED
ME A QUESTION, LET ME SLOW THROW IT BACK AT YOU, DO YOU THINK THART ANY
REALISTIC POSSIBILITY AND I'M JUST GOING TO SAY HYPOTHETICALLY NOW BECAUSE I DON'T KNOW
WHAT THIS COURT IS GOING TO DECIDE, BUT ASSUME THIS COURT SAID THAT
IT WAS LAWFUL FOR TO YOU REIMBURSE, DO YOU THINK THAT THEY'RE ANY REALISTIC
POSSIBILITY THAT ANY FEDERAL COURT WOULD EVER UPHOLD A CONVICTION AGAINST
YOUR CLIENT? MATTHEW GITTERMAN: FIRST OF ALL, I THINK THE
HE A IRRELEVANT, BUT SECOND OF ALL I DO THINK THAT POSSIBLE. BUT THEY'RE STILL
VIOLATING THE LAW. JUSTICE PATTERSON: MR. GITTERMAN, I HAVE A
QUESTION FOR YOU ABOUT THE REIMBURSEMENT WHICH IS NOT THE CONVENTIONAL MANNER
IN WHICH PAYMENTS ARE MADE. IS THAT REIMBURSEMENT CONSISTENT WITH THE WORKERS
' COMPENSATION ACT IN TERMS OF THE TYPES OF BENEFITS, MEDICAL BENEFITS,
PRESUMABLY THERE'S A WARD OF MEDICAL BENEFITS HERE, DOES THE WORKERS' COMPENSATION
ACT REQUIRE DIRECT PAYMENT OR IS REIMBURSEMENT WITHIN THE SCOPE OF
WHAT'S ALLOWED? MATTHEW GITTERMAN: GOOD QUESTION.
JUSTICE PATTERSON: I'M SORRY I'M NOT GELTING YOUR ANSWER, I THINK WE MIGHT HAVE
A LITTLE TRANSMISSION PROBLEM WITH YOUR FEED. I'M NOT HEARING YOU.
(BAD AUDIO). MATTHEW GITTERMAN: CAN YOU HEAR ME NOW.
JUSTICE PATTERSON: PERHAPS OTHER MEMBERS OF COURT COULD HEAR YOU BUT I
COULD NOT. GIT. CHIEF JUSTICE RABNER: WOOR HAVING A PAUSE THE
ARGUMENT FOR THE ARGUMENT AND GET SOME TECH ADVICE AND WHAT WAS TECH PICK UP
WITH JUGS TIS PATERSON'S QUESTION. (TECHNICAL ISSUES). CHIEF
JUSTICE RABNER: HIS VOICE CAME NN OUT A LITTLE BIT. STO THIS EXTENT. VEK THAT WAS
P HAD AING TO ME, ALSO, WITH THE LAST ONE. MODERATOR. INTERNET ISSUES
RIGHT NOW ARE RAM PENT. LET. THE COURT: TALK ABOUT 3RD SECTS, TELL
US ANYTHING ON YOUR MINE. MATTHEW GITTERMAN: DO YOU WANT
ME TO ANSWER THE QUESTION, I CAN CERTAINLY. CHIEF JUSTICE
RABNER: I'D RATHER HAVE THAT ON THE FEED SO THAT EVERYBODY CAN HEAR THE ANSWER.
MATTHEW GITTERMAN: I FIND MR. MATH THUNS I SPOKE EARLIER
AND WE BOTH AGREED THAT WE WOULD MUCH PREFER TO BE WITH YOUR HONOR'S IN PERSON.
THIS IS NOT PREEFD TO VET THIS ARGUE MANY BUT UNDER THE CURRENT TIMES
I GUESS WE HAVE TO DO WHAT WE HAVE TO DO. CHIEF JUSTICE RABNER: WE'D
LIKE TO SEA YOU AS WELL AND I HOPE THAT DAY COMES SOON. TOM SHOULD WE DID
A BACKUP PHONE OR JUST TOM TOM WE'LL DO A BACKUP PHONE JUST IN CASE. (OFF THE
RECORD). JUSTICE PATTERSON: MR. GITTERMAN, GOING BACK TO THE
QUESTION I ASK BEFORE WE BROKE. IS THE PROCESS THAT HAS BEEN FOLLOWED HERE IN
ACCORDANCE WITH THE WORKERS XEN SKAGS JUDGES AND HAS REIMBURSEMENTS OF THE
INDIVIDUAL, MR. HAGER, AS OPPOSED TO DIRECT PAYMENT FOR THE MEDICAL SERVICES
THAT HE'S PROVIDED CONSISTENT WITH THE WORKERS' COMPENSATION ACT?
MATTHEW GITTERMAN: YOU KNOW, THE ANSWER IS YES. BUT TO REALLY GIVE THE QUESTION
JUSTICE, I WOULD SUBMIT TO YOUR HONOR THAT WHEN I READ THE MASSACHUSETTS
CASE, I ACTUALLY LOOKED AT THE MASSACHUSETTS LAW AND THEY HAVE A LOT OF
REGULATIONS ABOUT HOW EMPLOYERS OR INSURANCE COMPANIES ARE TO MAKE
PAYMENTS TO MEDICAL PROVIDERS. NEW JERSEY DOES NOT HAVE SPECIFIC GUIDELINES ON
IN THE STATUTE OR IN THE ADMINISTRATIVE CODE AS TO HOW THOSE PAYMENTS ARE TO BE
MADE. OBVIOUSLY THERE ARE GUIDELINES AS TO WHAT IS TO BE PAID REASONABLE
AND NECESSARY, BUT IN ANSWER TO YOUR QUESTION, YES, WITH THE CAVEAT THAT, YOU
KNOW, FOR THE MOST PART, IT IS NOT DONE THAT WAY. FOR THE MOST PART,
MY CLIENTS INSURANCE COMPANIES, SELF AND SLURRED EMPLOYERS PAY PROVIDERS DIRECTLY,
PAY FOR MEDICATIONS DIRECTLY, AND GENERAL DO NOT REIMBURSE CLAIMS FOR
TREATMENT. JUSTICE PATTERSON: I JUST HAVE ONE FOLLOW-UP.
FOR THE MOST PART, WORKERS' COMPENSATION MEDICAL BENEFITS
ARE PROVIDED WITHOUT A COURT ORDER, BEFORE THE COURT RULES, CORRECT?
MATTHEW GITTERMAN: CORRECT. JUSTICE PATTERSON: SO TO THE EXTENT
THAT YOUR CLIENT IN THIS SPECIFIC SITUATION HAS THE BENEFIT OF COURT
ORDER, BENEFIT FROM THE POINT OF VIEW OF THE OF AIDING AND A BETTING ISSUE, IT'S
REALLY AN AND USUAL SETTING, IS IT NOT, IN SO FAST GENERALLY WHAT WORKERS
' COMPENSATION PROVIDERS DO IS TRY TO GET MEDICAL PAYMENTS GOING QUICKLY, CONSISTENT
WITH THE ACT AND DOING THAT WITHOUT A COURT ORDER SPECIFICALLY ORDERING
THAT AMOUNT TO BE PAID, AM I RIGHT ABOUT THAT? MATTHEW GITTERMAN:
YOU'RE RIGHT ABOUT THAT. JUSTICE PATTERSON: SO TO THE EXTENT THERE'S
A PAY NET TO USE JUSTICE ALBIN'S ANALOGY AND WE MOST COLORFUL ANALOGIES,
TO THE EXTENT THERE'S A BAYONET AT ISSUE IN THIS CASE, WE DON'T HAVE THAT IN
IS EMPLOYERS THAT WOULD BE FACED WITH THE SITUATION, IS THAT CORRECT?
MATTHEW GITTERMAN: THAT IS CORRECT. THAT IS CORRECT. BUT
AGAIN, I WOULD SUBMIT TO YOUR HONOR'S THAT IT'S IRRELEVANT, A COURT ORDER IS
NOT GOING TO BE A DEFENSE TO A FEDERAL PROSECUTION. JUSTICE
ALBIN: CAN YOU BE CERTAIN ABOUT THAT? SINCE AIDING AND A BETTING REQUIRES THAT
A DEFENDANT HAD A PURPOSE TO HAVE ACT, IF YOU HAVE A COURT ORDER, YOU
DON'T HAVE ANY, YOUR STATE OF MIND, THE DEFENDANT'S STATE OF MIND DOESN'T COME
INTO PLAY. YOU'RE BEING TOLD WHAT TO DO. THE AIDING AND A BETTING
PRESUMES THAT THE ACTOR IS ACTING VOLITIONALLY. WHEN YOU HAVE A COURT ORDER
COMPELLING YOU TO DO SOMETHING, YOU'RE NOT ACTING VOLITIONALLY, YOU'RE
ACTING IN ACCORDANCE WITH THE COURT ORDER. AM I MISTAKEN ABOUT THIS?
MATTHEW GITTERMAN: IN ACCORDANCE WITH THE COURT ORDER BUT YOU'RE KNOWINGLY
REIMBURSING MR. HAGER FOR MARIJUANA AND YOU'RE COMMITTING A CRIME.
JUSTICE FERNANDEZ-VINA: ANY NOT SUBJECT TO FEDERAL PROSECUTION, IF WE ORDER
TO YOU DO THIS, COULD YOU FEEL MORE COMFORTABLE IN, WOULD YOU FEEL MORE
COMFORT AL IN THAT MINIMUM WENT WHATEVER WAY IT WENT AND YOU LOST AND SAID YOU'RE
NOT SUBJECT TO FEDERAL PROSECUTION BECAUSE THE COURT IS ORGD YOU TO MAKE
PAYMENTS. MATTHEW GITTERMAN: RESPECTFULLY, AND I ALL DUE
RESPECT FOR YOUR HONOR'S AND FOR THE NEW JERSEY SUPREME COURT, BUT I DON'T THINK
THAT, YOU KNOW, YOUR HONOR'SES HAVE THE ABILITY TO INTI INCULPATE MY CLIENT
FWR A TED RUL PROS EXCUSE OR ANY EMPLOYER OR ANY INSURANCE FROM A FEDS
RUL PROSECUTION IF THAT OCCURS. JUSTICE FERNANDEZ-VINA: IT WAS REALLY
A RHETORICAL QUESTION KOUN. MATTHEW GITTERMAN: THANK YOU, JUDGE.
JUSTICE ALBIN: YOU HAVE TO UNMUTE. CHIEF JUSTICE
RABNER: CAN'T BE ENSUE LATED FROM THE PROSECUTION BUT YOU'RE IN THE POSITION
OF STANDING IN FRONT OF JURY AND SAYING EVERY POSSIBLE TURN WE FOUGHT
AGAINST THIS, WE DIDN'T WEREN'T TO DO THIS, WE'RE HERE BECAUSE THE COURT SAID
SO. YOU THINK BO DO YOU THINK YOU WOULD GET CONVICTED? MATTHEW
GITTERMAN: YOU BROKE UP AT THE VERY END. CHIEF JUSTICE RABNER:
DO YOU BELIEVE THAT WITH THAT BACKDROP THERE'S A CONVICTION THAT AWAITS YOU
FROM THE JURY? MATTHEW GITTERMAN: I'M NOT A CRIMINAL
ATTORNEY, JUDGE, BUT I DON'T WANT TO BE, I DON'T EVEN WANT TO BE CHARGED, I DON'T
WANT MY CLIENTS TO BE CHARGE IN A FED RESULT PROSECUTION AND AGAIN WK NOT
PICK WHAT LAWS TO OBEY AND WHAT LAWS NOT TO OH BY, IT'S A FEDERAL LAW, IF WE WANT
TO DO SOMETHING, WE SHOULD ASK OUR SENATORS AND OUR CONGRESS MEN TO CHANGE
THE STATUS OF MARIJUANA FEDERALLY. IT'S STILL A CRIME. CHIEF
JUSTICE RABNER: UNDERSTOOD. MATTHEW GITTERMAN: I WOULD NOT WANT TO
BE IN THAT POSITION TO BE FEDERALLY PROSECUTED. CHIEF JUSTICE
RABNER: ODD QUESTIONS? ANYTHING WOULD YOU LIKE TO ADD THE THAT POISE POINT,
RS GOOD GI NOTHING AT THIS POINT. THAUG. MR. MATH SHOES.
CHIEF JUSTICE RABNER: MR. MATTHEWS. MR. MATTHEWS: THANK YOU,
JUSTICES. TEN YEARS AGO NEW JERSEY ENACTED ITS MEDICAL MARIJUANA
STATUTE. AND IN THAT TEN YEARS NEW JERSEY HEALTH STATISTICS SHOW THAT WE HAVE
OVER 50,000 ENROLLIES IN THIS PROGRAM. AND OF THOSE ALMOST 30 PERCENT ARE
RECEIVING MEDICAL MARIJUANA FOR CHRONIC MUSCO SKELETAL INJURIES. SO IT WAS ONLY
INEVITABLE THAT WE WERE GOING TO COME TO THIS CROSS ROADS WHERE WE WERE GOING
TO FACE THIS QUESTION AS TO WHETHER A WORKERS' COMPENSATION JUDGE CAN ORDER AN
EMPLOYER TO REIMBURSE AN EMPLOYEE FOR THE COST OF MEDICAL MARIJUANA THAT IS
PRESCRIBED FOR HIS CHRONIC PAB FOLLOWING A WORK INJURY. AND I BRING
THAT OUT BECAUSE AT THE TIME OF THIS TRIAL MR. HAGER HAD BEEN ENROLLED IN THE MEDICAL
MARIJUANA PROGRAM FOR TWO YEARS. IT WAS EXPENDING OVER $600 A MONTH FOR
MEDICAL MARIJUANA AND THE COST HAS NOT BEEN REDUCED SINCE THEN. AND HIS MAXIMUM
RATE OF COMPENSATION IN HIS AWARD WAS $301 PER WEEK BASE ON HIS WAGESISM
I DON'T NEED TO DO A BAUJT ANALYSIS TO SHOW YOU THAT THE VALUE OF THIS JUDGMENT
FOR HIM IS SIGNIFICANTLY MANY MANY WAYS. AND IF I CAN FRAME MY ARGUMENT THREE
WAYS, THE FIRST POINT I WOULD LIKE TO MAKE IS THAT OUR WORKERS' COMPENSATION
STATUTE SPECIFICALLY MAKES PROVISION TO PROVIDE REASONABLE MEDICALLY NECESSARY
TREATMENT TO ALLEVIATE AN INJURED WORKER FROM THEIR INJURIES THAT THEY
SUSTAINED. AND THERE'S NO QUESTION THE PROOFS IN THIS CASE ESTABLISH THAT MR.
HAGER UTILIZED VARIOUS MODALITIES, TWO SURGERIES, OTHER MODALITIES, CHRONIC
OPIOID USAGE AND ULTIMATELY CAME TO TURN TO WITH OUR LEGISLATURE HAS DEEMED A
COMPASSIONATE FORM OF TREATMENT, WHICH IS THE USE OF MEDICAL MARIJUANA.
AND IT'S NOT ONLY APPROPRIATE IN THIS CASE TO DEEM IT TO BE REASONABLE AND NECESSARY
UNDEROUR STATUTE, BUT IT IS ALSO SIGNIFICANT WHEN YOU FACTOR IN THE
DUERATION OF HIS SYMPTOMS AND THE REALITY THAT THE PRIOR MODALITIES OF CARE THAT
HE EMPLOYED, SUCH AS OPIOID USAGE NOW REQUIRE A PATIENT TO OBTAIN A NAR
CANPRESCRIPTION SO THEY CAN EXPLAIN TO THEIR FAMILY AND FRIENDS HOW TO REVIVE THEM
WHEN THE INEVIDENTABLE HAPPENS THAT THEIR BODY GIVES OUT BECAUSE OF THE OPIOID
USAGE OR THEY OVERDOSE. SO, I DON'T THINK THERE WAS ANY QUESTION
THAT THIS IS APPROPRIATE MODALITY OF TREATMENT TO EMPLOY FOR AN INDIVIDUAL
WHO SUFFERS A WORK-RELATED INJURY. BUT THEN WE TURN TO THE ACTUAL STATUTE ITSELF
AND THE LANGUAGE CONTAINED IN THERE AND THE APPELLATE WANTS TO FRAME ITS
ARGUMENT THAT THEY ARE SOMEHOW EXCLUDED BY THE PROVISIONS OF THIS STATUTE WHICH
DISCUSS THE FACT THAT A GOVERNMENT MEDICAL ASSISTANCE PROGRAM OR A PRIVATE HEALTH
INSURER ARE NOT RESPONSIBLE FOR REIMBURSEMENT AND I WOULD PUT TO YOU JUST AS JUSTICE
LAVECCHIA POINTED OUT WORKERS' COMPENSATION, EMPLOYERS, CARRIERS ARE NOT
GOVERNMENT MEDICAL ASSISTANT PROGRAMS. SO IT REALLY TURNS ON WHETHER THEY ARE
PRIVATE HEALTH INSURERERS AND WHEN WE LOOK AT THAT, THERE IS NO DEFINITION IN OUR
MEDICAL MARIJUANA ACT. HOWEVER, WE HAVE TO LOOK ELSEWHERE AND WE FIND IN
17B A DEFINITION OF HEALTH INSURER WHICH SPECIFICALLY EXCLUDES WORKERS'
COMPENSATION COVERAGE. AND FURTHERMORE, WE LOOK AT THE LANGUAGE OF OUR MEDICAL
MARIJUANA ACT WHICH TALKS IN TERMS OF PRIVATE HEALTH INSURERS. WE PERMIT IN NEW
JERSEY UNDER THE WORKERS' COMPENSATION ACT FOR AN EMPLOYER TO BE SELF-INSURED.
WE HAVE PUBLIC ENTITIES SUCH AS THE STATE OF NEW JERSEY WHICH ARE SELF-INSURED
FOR WORKERS' COMPENSATION COVERAGE. THERE IS NO PRIVATE TO THAT. THE OTHER
POINT I WOULD LIKE TO MAKE ABOUT THE STATUTE IS ITS STAKES. WE ARE EXCLUDING
THESE TWO ENTITIES, MEDICAL ASSISTANCE PROGRAMS AND PRIVATE HEALTH INSURERS
FROM REIMBURSEMENT. SO THE LEGISLATURE CLEEFRLY CONTEMPLATED THERE WOULD BE REIM
BURSEMENT IN SOME INSTANCES FROM MEDICAL MARIJUANA. AND THESE WERE THE ONLY
TWO ENTITY PZ THAT WERE TO BE EXCLUDED. AND THERE HAD TO BE MOTIVATION AND REASON
AND I PUT TO YOU THAT JUST AS HAD BEEN DISCUSSED ALREADY THAT THE CONTROLLED
SUBSTANCE ACT SCHEDULES MEDICAL MARIJUANA AS A DRUG THAT THE FDA DID NOT RESEARCH,
CANNOT RECOMMEND AS A PRESCRIBED DRUG. AND WHAT IS CONTAINED IN EVERY
GOVERNMENT MEDICAL ASSISTANCE PROGRAM AND PRIVATE HEALTH INSURANCE POLICY A PRESCRIPTION
DRUG RIDER OR PRESCRIPTION DRUG COVERAGE. MEDICAL MARIJUANA IS NOT A PRESCRIBED
DRUG. IT'S USAGE IS CERTIFIED AND AUTHORIZED FOR QUALIFIED PATIENTS UNDER SPECIFIC
MEDICAL CONDITIONS WHICH WE HAVE DLINERATED UNDER OUR STATUTE. SO, THERE'S
A CLEAR EXPLANATION AS TO WHY OUR STATUTE WAS WRITTEN THAT WAY. AND IT CLEARLY
COULD HAVE BEEN WRITTEN DIFFERENTLY. IT COULD HAVE DISCUSSED ANY HEALTH
INSURANCE, SUSAS MASSACHUSETTS DID OR IT COULD HAVE BEEN SIMILAR OO TOO HIGH OR
OR FLORIDA WHICH EXPRESSLY EXCLUDED WORKERS' COMPENSATION CARRIERS FROM
RESPONSIBILITY FOR REIMBURSEMENT, BUT OUR LEGISLATURE CHOSE NOT TO. AND THAT IS
VERY SIGNIFICANT BECAUSE THEY CONTEMPLATED JUST WHAT WE ARE FACED WITH TODAY.
AND THEN LTIMATELY WE MOVE TO THE ISSUE WHICH WE ALL HAVE TO WRESTLE WITH.
THERE IS NO QUESTION THAT THE CONTROLLED SUBSTANCE ACT PREEMPTS ALL STATE LAW.
HOWEVER, THEY SPECIFICALLY AT CONGRESS ADDRESSED THE REALITY THAT THEY WOULD
NOT BE SEEKING TO IN FACT INTERVENE IN STATE LAW UNLESS A POSITIVE CONFLICT EXISTED
BETWEEN STATE LAW AND A CONTROLLED SUBSTANCE ACT. SO THAT
IS THE CONFLICT THAT WE LOOK TO HERE. AND THE APPELLATE COURT ADDRESSED IT. I
ATTEMPTED TO ARGUE IT. I DID SUKSFULLY. WE HAVE RAISED THE POINT THAT
AT THIS POINT THERE IS NO POSITIVE CONFLICT. IN AS MUCH AS THE MERE ACT OF REIM
BURSEMENT DOES NOT REQUIRE POSSESSION. IT CERTAINLY DOES NOT REQUIRE
DISTRIBUTION OR MANUFACTURE ON THE PART OF THE WORKERS' COMPENSATION CARRIER OR
MORE IMPORTANTLY THE EMPLOYER. AND ULTIMATELY, WHEN YOU LOOK AT THE
SITUATION FROM THAT PERSPECTIVE, YOU SEE THAT THERE IS NO POSITIVE CONFLICT. IN
PARTICULAR, WHEN YOU STEP BACK AND REALIZE THAT CONRESS IN 2014 HAS APPROPRIATEED
NO FUNDS TO THE DEPARTMENT OF JUSTICE TO INTERFERE IN MEDICAL MARIJUANA
LEGISLATION THROUGHOUT THE UNITED STATES. AND AT THIS POINT WE HAVE 33 STATES.
WE HAVE THE DISTRICT OF COLUMBIA, PUERTO RICO, GOM, ALL THAT HAVE SOME FORM
OF MEDICAL MARIJUANA LEGISLATION IN PLACE. IN THIS INSTANCE, WE ALSO HAVE STATE,
THE STATE OF NEW MEXICO WHICH HAS GONE AS FAR AS TO QUADIFY AND ESSENTIALLY
CREATE RULES AND REGULATIONS WHICH COMPEL WORKERS' COMPENSATION CARRIERS TO, IF YOU
WILL, PROVIDE REIMBURSEMENT FOR MEDICAL MARIJUANA. THERE HAS BEEN NO FEDERAL
PROSECUTION, NO CONGRUGZAL ACTION HAENS NEW MEXICO. THE STCHUTE HAS BEEN IN EFFECT
SINCE 2016. KEY TURN TO THIS ISSUE OF AIDING AND ABETTING.
AND I KNOW MANY QUESTIONS HAD ALREADY BEEN BROUGHT OUT ABOUT IT. CLEARLY, THE
CARRIER IN THIS INSTANCE IS NOT BEING PUT IN ANY POSITION TO ENHANCE THE PRONG.
THEY ARE DOING SO AS JUSTICES HAVE ALL POINTED OUT BY COURT ORDER, BUT EQUAL
SIGNIFICANCE, THEY ARE DOING SO IN A MANNER IN WHICH THEY DO NOT TAKE THE
AFFIRMATIVE CONTROL OVER POSSESSION, THE MANUFACTURE OR THE DISTRIBUTION. THEY
DO NOT DO SO. AND IN EFFECT, IN THIS PARTICULAR INSTANCE, WHEN IT COMES TO THE
ACT OF AIDING AND ABETTING, THERE IS NO QUESTION, THE EQUENT HAS OCCURRED
WHEN THEY PAY. AND JUSTICE PATTERSON, TO ANSWER YOUR QUESTION MORE SPECIFICALLY,
THERE ARE A NUMBER OF INSTANCES WHERE REIMBURSEMENT IS THE APPROPRIATE FORM
OF PAYMENT. FOR EXAMPLE, PARAPLEGIC THAT INCURS NESICAL MUSESTY FOR A HANDICAPPED
VEHICLE OR MODIFICATIONS TO THEIR HOME, OFTENTIMES THOSE COSTS ARE INCURRED
AND THEN REIMBURSED BECAUSE WEREER COMPENSATION CARRIERS ARE NOT IN THE BUSINESS
OF HOME MODIFICATION AS A TRADE. SO THAT'S NOT AS UNCOMMON
AS YOU WOULD THINK. AND MANY TIMES IN LITIGATED MATTERS IN WHICH THERE
IS A DISPUTE ULTIMATELY THE TREATMENT BEING PROVIDED AND THE PETITIONER ENTITLED
TO REIMBUSMENT FOR THE COST OF SAME. SO IT IS NOT AN UNCOMMON PRACTICE WITHIN
THE DIVISION. JUSTICE PATTERSON: IS THERE AN A DIFFERENCE,
MR. MATTHEWS, BETWEEN A COURT ORDERED REIMBURSEMENT AND A VOLUNTARILY PROVISION
OF MEDICAL BENEFITS BY REIMBURSEMENT OR BY DIRECT PAYMENT TO THE PROVIDERS
FOR PURPOSES OF THE QUESTION AS TO THE INTERFACE WITH FEDERAL LAW?
MR. MATTHEWS: I THINK YOU RAISED THE POINT THAT WAS RAISED IN MASSACHUSETTS
ULTIMATELY WAS THE FACT THAT WE'RE TRYING TO AVOID LITIGATION. SO, ARE WE GOING
TO LITIGATE EVERY MEDICAL MARIJUANA CASE SO THE COURT HAS TO ENTER AN ORDER
TO COMPEL THE CARRIER TO PROTECT (ZOOM AUDIO GLITCH) SORE INTHE CARRIER VOLUNTARILY
STEPS UP AND SAY, OKAY, IT'S APPROPRIATE, I WILL PROVIDE THE BENEFIT AND
THEY HAVE NOW CREATED GREATER EXPOSURE FOR THEMSELVES? JUSTICE
PATTERSON: OUR WCA IS CERTAINLY ANALOGOUS TO WHAT MAUS CHOOSTS HAS REALLY FOSTERS
VOLUNTARILY PAYMENT AND QUICK PAYMENTS. SO THAT THE INDIVIDUAL IS NOT WAITING.
MR. MATTHEWS: RIGHT. I WILL BRING THIS OBSERVATION TO YOU
IF I CAN TO ANSWER YOUR QUESTION. IT IS NOT UNCOMMON NOW FOR AN
AUTHORIZED POSITION, PAIN MANAGEMENT POSITION TO RECOMMEND MEDICAL MARIJUANA FOR AN INJURED WORKER BECAUSE THEY REACH THE POINT THERE ARE OTHER MODAL
ENTITIES SUCH AS THE STATE OF NEW JERSEY AND OTHER CARRIERS TO PROVIDE THAT
BENEFIT. BECAUSE THEY DO NOT FEAR PROSECUTION FROM THIS PARTICULAR EXERCISE.
AND THEY RECOGNIZE THAT THERE ARE AUTHORIZED DOCTOR THAZ RECOMMENDED IT.
JUSTICE PATTERSON: UNDERSTOOD, BUT IS THERE -- IS THERE A
DISTINCTION IN TERMS OF A POTENTIAL DEFENSE OF DURESS, I GUESS, TO AN AIDING AND
ABETTING PROSECUTION THEW RETICLE, BUT POSSIBLE, I THINK EVERYBODY CONCEDES
IT'S POSSIBLE THAT AN ADMINISTRATION THAT SIMPLY WANTS TO GO IN A DIFFERENT DIRECTION.
MR. MATTHEWS: SURE. SURE. JUSTICE PATTERSON:
BETWEEN A VOLUNTARILY REREIMBURSEMENT OR DIRECT PROVISION OF -- TO THE
PROVIDERS AND A LITIGATED MATTER WHICH SOMETIMES HAPPENS IN WORKERS' COMPENSATION,
BUT IS NOT FAVORED BY THE LAW, WHICH RESULTS IN A COURT ORDER.
MR. MATTHEWS: I THINK MY ARGUMENT WOULD BE THAT ANY EFFECTIVE CRIME HAS BEEN COMPLETED
I AM PROVIDING A PAYMENT. I AM NOT IN ANY WAY, IF YOU WILL, ADVANCING A
CRIME. AND I AM COMPLYING WITH A STATUTE IN THE STATE OF NEW JERSEY, WHICH REQUIRES
ME TO PROVIDE MEDICALLY NECESSARY MODALITIES OF CARE TO A PATIENT
BECAUSE THE ALTERNATIVE WOULD BE THAT I WOULD BE LEAVING THE PATIENT WITHOUT A MODE
OF CARE. JUSTICE PATTERSON: AND (ZOOM AUDIO GLITCH) DEFENSE
THAT WOULD BE PROVIDED, BUT IS THERE A DISTINCTION BETWEEN THE TWO IS WHAT I'M
SAYING? BETWEEN THE COURT ORDER AND THE VOLUNTARY REIMBURSEMENT?
MR. MATTHEWS: JNG THERE HAS TO BE A SDRINGZ. I DON'T THINK YOU CAN AVOID SAY
TLG IS NOT A DISTINCTION, BUT I THINK THE SAME RULES WOULD ULTIMATELY APPLY
IN TERMS OF DEFENSES AND PROTECTIONS FOR (ZOOM AUDIO GLITCH).
JUSTICE LAVECCHIA: IN RESPONSE TO THAT, DHAUTZ TIE INTO THE QUESTION THAT I WAS ASK
ING EARLIER, THE WORK RRZ COMP SYSTEM HAS REPLACED TORT LITIGATION FOR INJURED
WORKERS, EMPLOYERS HAVE AN OBLIGATION TO PROVIDE MESICALLY NECESSARY TREATMENT
WITH OR WITHOUT THE ORDER FOR WORKERS' COMP JUDGE BECAUSE OF THE STRUCTURE
OF OUR LEGISLATION. MR. MATTHEWS: CORRECT.
JUSTICE LAVECCHIA: CAN THAT PROVIDE THE SUFFICIENT DIFFERENTIATION IN THIS SITUATION?
MR. MATTHEWS: I THINK SO. I THINK THAT'S ACCURATE. I THINK
THAT'S ACCURATE. AND I ALSO THINK IT'S ACCURATE THAT YOU REFERENCE TOWARD LIT
IGATION BECAUSE IN A CIVIL MATTER IF MY CLIENT INCURHEAD DAMAGES WHICH
INCLUDED THE COST OF PROCURING MEDICAL MARIJUANA, WHY WOULD I BE PROHIBITED FROM
PRESENT TOOG A JURY THE ARGUMENT THAT THOSE DAMAGES ARE -- COSTS ARE
REIMBURSEABLE AS DAMAGES. JUSTICE LAVECCHIA: PRECISELY.
CHIEF JUSTICE RABNER: WOULD IT MAKE A DIFFERENCE IF AN EMPLOYER WERE REQUIRE
TODAY PAY THE MONEY UPFRONT IN TERMS OF AN AIDING AND AND ABETTING TEAR
THEORY IN A VIOLATION OF THE CSA? MR. MATTHEWS: YOU KNOW, I THINK
IT MAKE AS DIFFERENCE, BUT I DON'T THINK IT CHANGES ULTIMATELY THE DEFENSES
THAT EXIST, BUT I THINK CLEARLY IT DOES MAKE SOMEWHAT OF A DIFFERENCE. I DON'T THINK
YOU CAN SAY NO. AND I THINK OUR MEDICAL MARIJUANA STATUTE DISCUSSES
REIMBURSEMENT EXPRESSLY FOR THAT REASON RATHER THAN SOME OTHER MODALITY (ZOOM AUDIO
GLITCH). CHIEF JUSTICE RABNER: SO WHAT'S THE MEANINGFUL
DIFFERENCE BETWEEN THAT SITUATION AND A GUARANTEED REIMBURSEMENT?
MR. MATTHEWS: YOU MEAN IN TERMS OF THE PRACTICALITY OF IT OR LEGALLY IN TERMS
OF THE DEFENSE RELATING TO AIDING AND ABETTING? CHIEF JUSTICE
RABNER: LEGALLY UNDER THE AIDING AND ABETTING THEORY. MR.
MATTHEWS: YEAH. WELL, I ULTIMATELY BELIEVE THAT WHEN YOU ARE ORDER TO REIMBURSE,
I THINK WE MADE CLEAR THAT WE SEE THE PROTECTION THERE. IF ON THE OTHER
HAND VOLUNTARILY PROVIDING A BENEFIT THAT A STATUTE REQUIRES -- AND THIS IS BEETH
THE ASSUMPTIONICATION ACT AND THE MEDICAL MARIJUANA ACT IN THIS STATE, I
DO NOT KNOW IN MY MIND, I DO NOT SEE WHERE YOU WOULD BE PUT IN A GREATER LIKELIHOOD
OF BEING CONVICTED OF AIDING AND ABETTING THERE BECAUSE EFFECTIVELY, AS
I STATED, YOU'RE AGREEING TO BE RESPONSIBLE FOR THE ENTIREAL LIABILITY AS
CONSTRUED UNDER THE WORKERS' COMPENSATION ACT AND THE STATUTE SAYS THAT IN
SECTION 87. THAT'S WHAT CALLS WORKERS' COMPENSATION COVERAGE. SO YOU'RE BEING
PUT IN A POSITION WHERE IT IS YOUR ULTIMATE RESPONSIBILITY TO PROVIDE
THAT. JUSTICE ALBIN: MR. MATTHEWS, ONCE THE COURT SUCH AS
THE APPELLATE DIVISION, WHICH HAS STATEWIDE JURISDICTION SAYS A STATUTE IS ENFORCEABLE,
THEN THE POSITION IS NO LONGER VOLUNTARY. IT'S NOT NECESSARY FOR EVERY
WORKERS' COMPENSATION JUDGE TO ENTER AN ORDER ONCE -- MR.
MATTHEWS: I DON'T BELIEVE SO. I DON'T BELIEVE SO.
(SIMULTANEOUS CROSSTALK) JUSTICE ALBIN: STATEWIDE JURISDICTION
PASSES ON THE ENFORCEABILITY OF THE STATUTE. DO YOU AGREE WITH THAT?
MR. MATTHEWS: YEAH, NO, ABSOLUTELY, I DO. I DO. I THINK
THAT'S THE PRACTICAL EFFECT IF THIS DECISION IS FAVORABLE TO MY CLIENT.
CHIEF JUSTICE RABNER: ANY OTHER QUESTIONS ANYONE?
ANYTHING YOU WOULD LIKE TO ADD, MR. MATTHEWS? MR. MATTHEWS:
NO, THANK YOU, JUSTICE. MR. SILBER: I TLAUT IT MIGHT BE USEFUL
FIRST TO TALK BOUT THE FEDERAL STATUTES BECAUSE 841A IS NOT IMPLICATED HERE
AT ALL. AND THAT STATUTE ONLY PROHIBITS PRODUCTION, DISTRIBUTION AND POSSESSION
WITH INTENT. IT DOES NOT SPEAK TO THE CRIME THAT IS BEING TALKED BOUT HERE,
WHICH IS SIMPLE POSSESSION. THAT STATUTE A 21 U.S. E844. AND IT MAKES IT UNLAWFUL
TO POSSESS ANY CONTROLLED DANGER SUBSTANCE AND THESE ARE INTERESTING WORDS,
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. AND I THINK IT'S ALSO IMPORTANT IN TERMS OF THE POINTS THAT JUSTICE ALBIN
MADE AND JUSTICE LAVECCHIA MADE AND THE CHIEF MADE ABOUT THE PRACT ICALITY
AND THAT STATUTE CARRIES A MAKTS MM PENALTY OF ONE YEAR IN JAIL AND $1,000 FINE,
WHICH AS YOU KNOW IS POULTRY COMPARED TO ALL OF THE OTHER PUNISH MTHS FOR
VIOLATIONS UNDER THE CSA. SO IN TERMS OF PRACTICALITY THAT HAS BEEN
DISCUSSED FOR A U.S. ATTORNEY TO TRY AND INDICT AN EMPLOYER OR AN INSURANCE
COMPANY FOR REIMBURSING SOMEBODY PURSUANT TO A COURT ORDER FOR A STATUTE THAT
TRUTHFULLY I'M NOT SO SURE FROM THE LANGUAGE OF THE STATUTE THAT THERE'S
A CRIME. I MEAN, THAT'S REALLY PRETTY INTERESTING LANGUAGE. I REALLY JUST LOOK
ED AT IT FOR THE FIRST TIME BECAUSE AS MOST CRIMINAL PROGRAM TITIANER IN THE
PROGRAM WORLD KNOW AND I KNOW THE CHIEF CUST S KNOW PZ, THAT STRUCH ATE IS NOT
REALLY PROSCULATED IN PRAL SKOURT. MAYBE IN FORT DIX KIND OF COSS, BUT
THE U.S. ATTORNEY'S OFFICE IS NOT REALLY PROSECUTING 844 CASES. THOSE CASES ARE
RESERVED FOR FAVORABLE PLEA AGREEMENTS FOR A DEFENDANT. SO IF WE'RE REALLY
TALKIC BOUT THE PRACTICALITY OF A PRAL GOVERNMENT PROSECUTING THE INSURANCE COMPANY
OR THE EMPLOYER FOR REIMBURSING $616 FOR A MONTH OF CANNABIS, MINIMAL CANNABIS
USE, THERE IS NO CHANCE THAT'S GOING TO HAPPEN. THAT'S NOT --
JUSTICE PATTERSON: MR. SILBER, YOU HAVE GIVEN US TWO POINTS THERE. I THINK THERE
IS A DISTINCTION BETWEEN THE TWO. ONE IS YOU'RE SAYING THE ELEMENTS OF
THIS OFFENSE WOULD NOT BE -- YOUR RAURMENTING POTENTIALLY MIGHT NOT BE PROVABLE
BY THE FEDERAL GOVERNMENT, BUT ON THE OERLT HAND YOU'RE SAYING ONLY A YEAR
IN JAIL AND OTHER THANLY A THOTHOUIAN MAKES IT PRETTY MINOR. THE EXTENT OF THE
POTENTIAL PUNISHMENT HAS NO BEARING ON THE CONFLICT OF THE ISSUE, DOES IT?
MR. COLLOQUY: I DISPUTE THAT. I THINK IT DOES BECAUSE WHEN WE'RE TALKING
ABOUT THE PRACTICALITY WHICH IS WHAT JUSTICE ALBIN PRODUCED AND JUSTICE
LAVECCHIA WHO WE'RE TALKING BOUT THE PRACTICALITY, YOU DON'T TAKE AN UNUSUAL CASE
THAT HAS BEEN POINTED OUT HAT HAS EVER HAPPENED IN THE UNITED STATES FROM 1996
WHEN THE FIRST MEDICAL CANNABISP ACT TAKES PLACE IN CALIFORNIA UP TO THE
PRESENT TIME IT'S NEVER HAPPENED AND THE IDEA IT WOULD HAPPEN FOR A STATUTE THAT
IS SO BENIGN I THINK DOES SPEAK VERY ELOQUENTLY TO THE LACK OF PRACTICALITY
HERE. IN THAT IT'S NEVER GOING TO HAPPEN. THE SECOND ITEM THAT
WE CORRECTLY SAW IS I'M NOT SURE THERE IS A CONFLICT. I MEAN, WHAT DOES THAT
LANGUAGE MEAN? IF WE GO BACK TO THEISTRY OF MEDICAL CANNABIS IN THE UNITED
STATES -- JUSTICE ALBIN: CAN YOU READ THE STAP OOF GUT.
MR. SILBER: I AM READING THE FEDERAL STATUTE. JUSTICE
ALBIN: GIVE IT TO US AGAIN, THE NUMBERS SLOWLY AND READ IT AGAIN, PLEASE.
MR. SILBER: I WILL DO MY BEST, JUDGE. IT'S 21 U.S. C844. SCOMB IT PROVIDES
THAT IT SHALL BE UNPAUFL TO POSSESS CONTROLLED DANGEROUS 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.
AND THEN LATER ON IN THE STATUTE PROVIDES THE MAXIMUM SENTENCE
OF ONE YEAR AND MAXIMUM OF $1,000. JUSTICE LAVECCHIA: I HAVE THE
STATUTE IN FRONT OF ME THAT YOU'RE READING FROM. CLEARLY, IF TALKING ABOUT
THE ENTIRE SCHEDULE OF DRUGS THAT THE FEDERAL GOVERNMENT PROMAL GATES AND MANY
OF THOSE BELOW SCHEDULE 1 ARE PERMISSIBLE FOR USE IN CONNECTION WITH A VALID
PRESCRIPTION. DO YOU THINK THIS LANGUAGE CAN OVERRIDE THE
SCHEDULE 1 PROHIBITION THAT FINDS MOW PERMISSIBLE MEDICAL PRESCRIPTION CAN BE ISSUED
FOR THE ITEMS THAT ARE LISTED IN THAT ONE? LIKE MARIJUANA, UNLIKE OEPIATES.
MR. COLLOQUY: AS A CRIMINAL DEFENSE LAWYER I FEEL PRETTY CONFIDENT
WITH THAT LANGUAGE. I'M NOT SURE WHAT IT MEANS. I'M NOT TELLING YOU I HAVE AN
ABSOLUTE KNOWLEDGE WHAT IT MEANS, BUT IT SURE CHANGES THE EQUATION FROM
WHAT WE WERE TALKING BOUT WITH 841. JUSTICE LAVECCHIA: CREATESM
BUGUETY WHEN YOU READ IT IN COMBINATION WITH THE OEFT SECTION WHICH IDENTIFIES
WHAUTA SCHEDULE 1 MEANS. MR. COLLOQUY: IRM AND IT'S REALVENT TO THE
EXPECTATION. I MEAN, YOU KNOW, TRUTHFULLY WE DON'T HAVE REALLY THE
RESPONSIBILITY OF THEM EMPLOYER BEING PROSECUTED FOR, YOU KNOW, AIDING AND
ABETTING. I MEAN, THE EMPLOYER ACTUALLY FACES NO DANGER. SO THE CONFLICT
ISN'T THERE. AND MAYBE I CAN RESPOND JUST ONE MOMENT TO THE INITIAL TALK ABOUT
THE MASSACHUSETTS STATUTE, THE MASSACHUSETTS CASE THAT WAS DECIDED OCTOBER
27TH, RIGHT VERSUS CENTRAL INSURANCE. THAT CASE ACTUALLY HAS NO APPLICATION
TO THIS CASE. THE REASON I SAY THAT IS THAT CASE IS DECIDED ON THE CONFLICT WITHIN
THE MASSACHUSETTS STATUTE, WHICH IS ALLEGED HERE, WHICH IS THE LANGUAGE IN
THE NEW JERSEY STATUTE IS 246I-16. IT IS AAL NAS UNLESS WORD FOR WORD BGZ. PZ
WORD FOR WORD FOR THE 217 VERSION OF OUR STATUTE WHICH WAS AMENDED IN 2019H BUT
LANGUAGE WAS ADDED THE STAM FIRST SENTENCE IS WORD FOR WORD. AND FRANKLY
THAT'S THE PMASSACHUSETTS CASE IMPARTS FROM THIS CASE BECAUSE PRIVATE INSURERS
ARE ACCEPTED. WHAT DO THEY DO? THEY SELL INSURANCE. WE DEFINE INSURANCE IN
THIS STATUTE THAT MR. MATTHEWS POINTED OUT SAID 17B174, AND THAT SPECIFICALLY
SAYS THAT WORKERS' COMPENSATION IS NOT PART OF PRIVATE HEALTH INSURANCE. SO IT'S
CLEAR THAT THE MASSACHUSETTS CASE IS COMPLETELY DISH TINGUISHABLE FROM OUR
STATUTE BY 17B, YOU KNOW, 174. JUSTICE PATTERSON: WHAT WAS THE
LEGISLATURE'S GOAL IN EXCLUDING OR ESSENTIALLY NOT REQUIRING INSURERS TO
PROVIDE THE BENEFITS? WAS IT PROTECTING -- WAS IT TRYING TO PROTECT ENSURE RSZ
FROM POTENTIAL LEGAL PERIL? DFRMTHS IT HAS THAT EFFECT, BUT I DON'T THINK
THAT WAS THE MOTIVATING FACTOR IF YOU READ THE LITERATURE BECAUSE ALMOST EVERY
STATE THAT ENACTED MEDICAL MARIJUANA HAS SOMETHING LIKE THAT IN THERE. AND THE
REASON REALLY WAS TO AVOID THE CONFLICT WITH THE FEDERAL GOVERNMENT. THAT'S SIMPLE.
JUSTICE PATTERSON: THERE YOU HAVE IT. THERE IS A LEGISLATIVE
RECOGNIZENITION OF A PROBLEM HERE AND I KNOW THERE'S A STATUTORY INTERPRETATION
ISSUE AS TO WHETHER COMP IS IN A CATEGORY OR NOT. I'M NOT ADDRESSING THAT,
BUT THERE WAS A LEGISLATIVE RIGNITION THAT INSURERS MAY HAVE A POTENTIAL LEGAL
PERIL AND THEREFORE WERE NOT GOING TO REQUIRE THEM TO PLAY BALL ON THIS.
AM I RIGHT? MR. COLLOQUY: I'M NOT UNDERSTANDING WHAT YOU WANT
WHEN YOU SAID THERE MAY BE AM KIND OF PROBLEM. 17B CLEARLY ANSWERS THAT QUESTION.
JUSTICE PATTERSON: I'M SORRY. I MUST -- WASN'T THE
LEGISLATURE TRYING TO -- AND I'M TRYING TO AVOID A SITUATION WHERE AN ENSURE HR
COULD VIEW ITSELF POTENTIALLY BEING IN SOME SORT OF LEGAL PERIL?
MR. SILBER: GRANTED THAT KW. (SIMULTANEOUS CROSSTALK)
MR. COLLOQUY: BUT NOT WORKERS' COMP SAG COVERAGE. JUSTICE
PATTERSON: I UNDERSTAND. I UNDERSTAND. (SIMULTANEOUS
CROSSTALK) JUSTICE PATTERSON: I'M NOT GETTING TO THAT
ISSUE H BUT IT DOES REFLECT THE LEGISLATURE'S VIEW THAT THIS IS A DIFFICULT AREA.
MR. SILBER: I THINK EVERY LEGISLATURE, ALL 33 THAT HAVE PASSED
MEDICAL CANNABIS BILLS ARE UNDERSTANDING THAT THE FEDERAL PROHIBITION CREATES
PROBLEMS FOR MEDICAL CANNABIS. AND, SO, THE VARIOUS LEGISLATURES DID THEIR
BEST TO WALK THROUGH THE TOOMBS AND I THINK THE EXCLUSION OF GOVERNMENTAL AGENCIES
AND PRIVATE HEALTH INSURANCE FROM BEING COMPEL TODAY REIMBURSE IS PART OF
THAT WALKING THROUGH. BUT IN THE CASE HERE AT BAR SXL QUESTION KG CERTIFIED BY
THIS COURT I DON'T UNDERSTAND WHY -- IT'S TRUE, BUT WHY IS IT RELEVANT BECAUSE
WE HAVE THIS CLEAR EXCEPTION FOR WORKERS' COMPENSATION COVERAGE?
CHIEF JUSTICE RABNER: TWO QUESTIONS. ONE IS TO FOLLOW UP ON YOUR INTRGS ARGUMENT
ABOUT SECTION 8446789. HAVE OTHER JURISDICTIONS ADDRESSED
THAT IN THE REPORTED DECISIONS? MR. SILBER: NO. NOT --
LET'S -- WHAT REPORTED DECISIONS? CERTAINLY THE MAINE COURTS DOESN'T
TAKE ABOUT IT AT ALL. AND MAY I SAY MAINE IS PERSUASIVE, NOT BINDING AUTHORITY.
THE OPINIONS IN THAT CASE ARE REALLY -- JUSTICE TRUBAR REALLY
PUTS THE POINT THAT SHOULD BE THIS COURT'S MAJORITY OPINION AND REALLY INTEREST
ING, JUSTICE ALEXANDER, VERY SHORT DESEBTING OPINION AFTERWARDS TALKS
ABOUT IT FROM A STAPT OF THE PERSON WHO IS REALLY SUPPOSED TO BE HELPING, THE PERSON
COVERED. SO ARE ARE WE REALLY FROM A PAMALLY A STANDPOINT GOING TO SAY, NO,
YOU CAN'T HAVE THE -- WE WON'T REIMBURSE YOU FOR THE MEDCANSON THAT HELPS YOU AND
WE WILL DO WHAT DR. BRADY SAYS, IT'S EITHER TAKE A MEDICINE THAT'S COSTLY, BAD
CONSEQUENCES AND DOESN'T HELP YOU OR SUCK IT UP AND TAKE THE PAIN, WHICH
HAS THE APPELLATE DIVISION SAID -- JUSTICE ALBIN: MR. SILBER, WITH
RESPECT TO 844, I'M VERY GLAD THAT JUSTICE LAVECCHIA... IT SEEMS THAT REASONABLE
CONSTRUCTION OF THAT PARTICULAR PROVISION IS TO COVER SCHEDULES OTHER THAN SCHEDULE
1. OTHERWISE, PHYSICIANS WOULD BE ABLE TO RIGHT PRESCRIPTIONS FOR COCABE
AND HEROIN. SO IT DOESP NOT SEEM AS THOUGH THAT PROVISION WAS MEANT TO OVERRIDE
SCHEDULE 1 FOR THE REASONS THAT JUSTICE LAVECCHIA SAID BECAUSE WE'RE TOLD
AS A MATTER OF LAW SOME DRUGVISE NO HEALTH RELATED BENEFITS. DO
YOU AGREE? MR. SILBER: I WOULD REALLY BE RAEDEE TROOZUCH.
JUSTICE ALBIN: OKAY. MR. COLLOQUY: IN TERMS
OF THE RULE OF LENITY, I WOULD HAVE A SHOT. TO WOULD I WIN? I REALLY DON'T
KNOW. I PASSED THE TEST -- AND ACTUALLY THAT'S REALLY THE POINT HERE THAT IF YOU
PASSED THE STRAIGHT FACE TEST, THAT'S SIGNIFICANT. CHIEF
JUSTICE RABNER: YOU'RE HERE AS A FRIEND OF THE COURT. HELP US ON THE QUESTION
OF WHETHER IT'S APPROPRIATE TO CONSIDER THE PRACTICALITY OF WHEN YOU'RE
DOING A QUESTION ABOUT CONFLICTS REEMPTION BECAUSE THAT TAKES YOU AWAY FROM ASK
ING IS IT IMPOSSIBLE TO COMPLY WITH BOTH STATUTES AT THE SAME TIME AND INSTEAD
TO FOCUS THEN BECOMES WHAT WILL THE PROSECUTOR DO? HOW WILL THE PROSECUTOR EXERCISE
HIS OR HER DISCRETION WHICH MIGHT LEAD TO A SITUATION WHERE A STATE LIKE
NEW JERSEY THERE IS LITTLE CHANCE OF A PROSECUTION, BUT IN A DIFFERENT STATE
WITH EXACTLY IDENTICALLY WORDED STATUTES K YOU COULD END UP WITH PREEMPTION. DOES
THAT MAYBE SENSE? MR. COLLOQUY: THAT IS THE QUESTION. YOU
PUT IT IN THE HOOVRT BULLS EYE. ARE WE GOING TO DO FORM OR ARE WE GOING
TO DO REALITY? ARE WE GOING TO HELP PEOPLE? IT SEEMS TO ME THAT THE POLICY HERE
BETWEEN MAKING THE REIMBURSEMENT FOR CANNABIS AVAILABLE TO PEOPLE IT SEEMS
TO BE MEANS THAT WE SHOULD AFFIRM THE APPELLATE DIVISION IF WE CAN DO SO WITH
INTEGRITY. FROM A PALACY STAPD A REVERSEAL HERE IS NOT GRP ANYBODY AND THE
QUESTION IS, IS IT COMPELLED BY THE STATUTE AND THAT'S THE POINT.
JUSTICE PATTERSON: WOULD YOU AGREE WITH JUST IN GENERAL THAT AMERICAN HISTORY IS
FULL OF SITUATION WHERES SOMETHING THAT WAS PROSECUTED IN ONE DECADE WAS
NOT PROSECUTED THE NEXT AND VICE VERSA? THAT LAWS CHANGE, BUT ALSO PROSATORYIAL
DISCRETION SOMETIMES CHANGES ABRUPTLY WITH THE ELECTION OF A PARTICULAR PRECEDENT
OR THE APPOINTMENT OF A PARTICULAR U.S. ATTORNEY? MR. COLLOQUY:
YOU MEAN IN THIS CASE, FOR EXAMPLE, THE VICE PRESIDENT ELECT IS THE SPONSOR OF
THE BILL TO -- JUSTICE PATTERSON: I'M NOT ASKING TO GET
INTO POLITICS, BUT ALL I'M SAYING IS THAT PROSYOUATORYIAL DISCRETION AND
SOMETHING PARTICULAR ACT OR OMISSION BEING PROSECUTED OR NOT CAN CHANGE WITH TIME
AND CAN CHANGE ABRUPTLY WITH TIME. IS THAT TRUE? MR. SILBER:
WE HAVE ENOUGH CHAMPS OF THAT RR TRUE. I WON CASES IN THIS VERY COURT THAT HAVE
CHANGED THE LAW. SO THAT'S OBVIOUSLY TRUE. I'M NOT SURE WHERE THAT TAKES
US, THOUGH, UNLESS WE'RE GOING TO SAY BECAUSE THERE IS A POSSIBILITY, LET ME SAY
FOR JUSTICE ALBIN, A PROBABLE, THAT THERE IS A CONFLICT OF POSSESSION OF
SMALL EMENTS OF CONBUS BETWEEN THIS STATUTE AND THE FEDERAL STATUTE THAT YOU
COULD FIND A CONFLICT IF YOU WANT TO. IT'S IN A CASE WHERE THERE IS NO CHANCE
OF EVER BEING PROSECUTION. THERE HAS NEVER BEEN ONE IN, YOU KNOW SHS SINCE 19
96. SO THE ISSUE THAT CHIEF RARAISES IS THE PRACTICAL REAL WORLD APPLICATION
OR THE FACT THAT THERE ARE TWO STATUTES THAT COULD PROBABLY BE IN CONFLICT.
CHIEF JUSTICE RABNER: SO POOVRT QUESTION THAT I'M ASKING YOU FOCUSES ON WHETHER
ANALYTICALLY IT'S APPROPRIATE TO CONSIDER PRACTICALITY WHEN YOU'RE DOING AN
UNLESS OF PRESUMPTION BECAUSE THEN THAT TURNS ON HOW THE PROSECUTOR EXERCISES HITZ
OR HER DISCRETION. MR. SILBER: IF WE GET BACK TO THE LANGUAGE
IN THE CASES WHICH TALKS ABOUT HYPOTHETICAL OR PROBABLE. AND STOW IT SEEMS
TO ME THAT IN THAT KIND OF A SITUATION YOU'RE OPENING THE DOOR TOAL PRACTICALITY
WHERE IT'S SDPASHG DRAMATIC AS IT IS HERE. AND IT REALLY IS AS STARK AND
DRAMATIC AS ANYTHING I HAVE SEEN. WOULD KNOW SITTING HERE THERE IS NO CHANCE THAT
ANYBODY IS GOING TO BE PROSECUTED IN A SITUATION WHERE AN EMPLOYER OR
INSURANCE COMPANY REIMBURSES A SMALL AMOUNT OF MONEY FOR SMALL AMOUNT OF CANNABIS
THAT THE PROFESSIONAL SAY DOES SOME GOOD FOR THE PATIENT. IT'S FERVE GOING TO
HAPPEN. JUSTICE ALBIN: ARE YOU AWARE OF ANY LAWSUITS ANYWHERE
IN THE UNITED STATESP WITH RESPECT TO MEDICAL MARIJUANA OR RECREATIONAL MARIJUANA
TO ENJOIN THE ENFORCEMENT OF STATE LAWS? MR. COLLOQUY: YES.
THERE HAVE BEEN A BUNCH THAT HAVE ALL FAILED. I THINK THE LAST ONE WAS IN THE
SOURN DISTRICT OF NEW YORK WITH WASHINGTON I THINK WAS THE NAME OFT CASE.
THERE HAS BEEN MAYBE A THOUSAND OF THOSE CASES. JUSTICE ALBIN:
OKAY. SO I'M ASKING THAT QUESTION. MR. COLLOQUY: THEY NEVER
WON. IT ALWAYS FAILED. THAT'S TRUE. BY THE WAY, JUST THE PREDICTION IT'S
GOING TO END, AND, YOU KNOW, TRUTHFULLY IF WE'RE TALKING BOUT THE MEMOS AND TALKING
BOUT THE SESSION MEMO AND STUFF, THE HOUSE JUDICIARY COMMITTEE SENT THE MOER ACT
TO THE FLORE WHICH MAY BE VOTED TO THE HOUSE THIS WEEK AND WHERE IT GOES TO THE
SENSTER. I'M NOT PREDICTING POLITICALLY, BUT CERTAINLY -- LET'S PUT THIS WAY.
I DON'T THINK THERE IS ANYBODY WHO TRINGATHIZE FEDERAL PROIB HIGZ IS GOING TO DO
NET NEXT FOUR YEAR (ZOOM AUDIO GLITCH) OR FIVE MONTHS OR A YEAR, WHO KNOWS, BUT,
YOU KNOW, IT'S GOING. CHIEF JUSTICE RABNER: ANY OTHER QUESTIONS?
ANYTHING YOU WOULD LIKE TO ADD, MR. SILBER? DFRNLS THANK
YOU VERY MUCH. CHIEF JUSTICE RABNER: MATTHEW
GITTERMAN: MASSACHUSETTS DECISION I'M THERE'S SOME LANGUAGE IN THE MASSACHUSETTS
DECISION THAT IS VERY PERTINENT TO OUR CASE TODAY. THE STATUTE RECOGNIZES
AND OBVIOUSLY TALKS ABOUT THE MASSACHUSETTS DECISION AND I'LL READ FROM
PAGE TWEN. I JUST ASK RECOGNIZE REQUIRED COMPANIES INSURE THE HAELT
NL OF MEDICAL MARIJUANA PAYMENT PATIENTS TO PAY FOR THE MARIJUANA USAGE RAISES
THE STAKE MUCH HIGHER, THAT I IRN SHORES REQUIRED TO MAKE SUCH PAYMENT THE
SCOPE OF THE LEGAL SAGS OF MEDICAL MARIJUANA WOULD BE SUBSTANTIALLY RAISING EARN
CONCERN ABOUT FEDS YOU WILL ENFORCE MANY AND REEM SHUN, 1ST A LACK OF DOCTORS
KFRD BY THE AK, INSURANCE COMPANIES WOULD NOT BE PARTICIPATING IN
PAESHTS' USE OF A FEDERALLY PRESCRIBED SUBSTANCE VOLUNTARILY. IT IS ONE THING
TO VOLUNTARILY ASSUME ON PAGE 21 NOW, IT IS 1 THING TO VOLUNTARILY ASSUME
A RICK FOR FEDERAL PROSECUTION. IT IS ANOTHER TO INVOLUNTARILY HAVE SUCH A RISK
IMPOSED UPON YOU, SUPER POSSESSION OF DISTRIBUTION OF MARIJUANA REMAINS
FEDERALLY ILLEGALS AIDING AND A BETTING POSSESSION OR DISTRIBUTION, IS NOT
UNREASONABLE GIVEN THE CURRENT REGULATORY AND VIERN MENT AND SHIFTH WINDS OF
FEDERAL ENFORCEMENT FOR INSURANCE COMPANIES TO FEAR THAT PAYING FOR MEDICALLY
PRIERD MARIJUANA DO EXPOSE THEM TO POE TN HULL CRIMINAL PROSECUTION,
FURTHER INSHURNS COMPANIES ARE P CLEE INVOLVED IN INTR STATES COMMERCE WITH
RAISESING FEDS RUL REGULATOR TOURS CONCERNS, REQUIRING INSHORES ERS TO
PARTICIPATE IN THIS CASE MASSACHUSETTS MEDICAL MARIJUANA TEAM WHICH REAP OF THE
MASSACHUSETTS ACT WELL BEHIND THE REIMBURSEMENT MAY ALSO INCREASE USAGE
AND THERE BY FURTHER E SPANNEDING THE SCOPE OF THE STATUTE AND THUS FEDS RUL
CONCERNS. BY PROVIDE AGO ACT NOT REQUIRE INSURANCE, EN SHURS ERR TO REIMBURSE
MEDICAL MARIJUANA EXPENSE THE REIMBURSEMENT PROVISION PROTECTS
PARTIES FROM BEING COMPELLED TO PAY FOR THE USE OF A FEDERALLY PRESCRIBED SUBSTANCE.
AGAIN, CHIEF JUSTICE RABNER ASKED A VERY PORP QUESTION AND
THAT IS PAYING UP FRURNGS IS THAT ANY DIFRTS, IF YOU PAY UP FRONT VERSUS PAYING
AFTER. AND MR. MATTHEWS SAID THAT THAT IS DIFFERENT. IT'S CLEARLY
DIFFERENT. I DON'T THINK IT IS. I THINK WHETHER YOU PAY UP FRONT OUR REIMBURSE,
YOU'RE STILL KNOWINGLY PAYING FOR MARIJUANA. THANK YOU. FLD.
CHIEF JUSTICE RABNER: THANK YOU FOR THE HELPFUL ARMGS WE'LL FAKE THE MATTER
UNDER ADVISEMENT