STEVEN KADONSKY VS. STEVE C. LEE (Division of Consumer Affairs)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3324-14T4
STEVEN KADONSKY,
APPROVED FOR PUBLICATION
Appellant,
October 31, 2017
v. APPELLATE DIVISION
STEVE C. LEE, Acting Director
of the Division of Consumer
Affairs,
Respondent.
_____________________________________________
Argued November 29, 2016 – Decided October 31, 2017
Before Judges Messano, Espinosa, and
Guadagno (Judge Espinosa dissenting).
On appeal from the Division of Consumer
Affairs.
Joseph L. Linares argued the cause for
appellant (Walsh Pizzi O'Reilly Falanga LLP,
attorneys; Marc D. Haefner, Selina M. Ellis
and Mr. Linares, on the briefs).
Jodi C. Krugman, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney;
Andrea M. Silkowitz, Assistant Attorney
General, of counsel; Ms. Krugman, on the
brief).
Barbour & Associates, LLC, attorneys for
amicus curiae, L.B. on behalf of G.B. (Roger
A. Barbour, on the brief).
The opinion of the court was delivered by
GUADAGNO, J.A.D. (retired and temporarily assigned on recall).
In January 2014, Steven Kadonsky, an inmate serving a
sentence for marijuana trafficking,1 filed a petition with the
Director of the Division of Consumer Affairs (Division) seeking
to have marijuana rescheduled from a Schedule I controlled
dangerous substance to Schedule IV.2 Kadonsky argued that
because the Legislature determined that marijuana had "a
beneficial use . . . in treating or alleviating the pain or
other symptoms associated with certain debilitating medical
conditions" when it passed the New Jersey Compassionate Use
Medical Marijuana Act (CUMMA), N.J.S.A. 24:6I-1 to -16, in 2010,
marijuana no longer satisfied one of the requirements for
inclusion in Schedule I, that the substance "has no accepted
medical use in treatment," N.J.S.A. 24:21-5(a).
On January 9, 2015, the acting director (Director) of the
Division denied Kadonsky's petition. The Director noted that
marijuana has been listed as a Schedule I substance since the
1
Pursuant to a plea agreement, Kadonsky pled guilty to the "drug
kingpin" statute, N.J.S.A. 2C:35-3, and was sentenced to life
imprisonment with a twenty-five year period of parole
ineligibility. State v. Kadonsky, 288 N.J. Super. 41, 43 (App.
Div.), certif. denied, 144 N.J. 589 (1996).
2
Alternatively, Kadonsky argued that Schedule V "may be more
proper for marijuana."
2 A-3324-14T4
passing of the federal Controlled Substances Act (CSA) in 1970,
see 21 U.S.C.A. § 812(c), and N.J.S.A. 24:21-3(c) requires that
he "similarly control the substance" unless he "objects and
follows the appropriate process to make the reasons for his
objections public."
The Director also found no indication that, in passing
CUMMA, the Legislature intended "to treat marijuana similar to
or consistent with substances listed in Schedules II-V."
The Director observed that both the New Jersey Department
of Health and the Board of Medical Examiners have interpreted
CUMMA as neither rescheduling nor permitting the rescheduling of
marijuana. Finally, the Director suggested federal law
prohibited rescheduling:
[T]he Department of Health noted that
marijuana is not approved by the United
States Food and Drug Administration, and
cannot be prescribed by physicians or
dispensed by pharmacists. The Department
explained that changing the classification
of marijuana from a Schedule I substance in
New Jersey would require a change in
existing federal law.
Kadonsky appealed and now argues that the Division's
decision is contrary to and inconsistent with the relevant
statutes; rescheduling of marijuana is required; and the
Director's decision renders much of the statutory scheme
superfluous and conflicts with Supreme Court precedent.
3 A-3324-14T4
We also granted leave to appear as amicus curiae to L.B. on
behalf of G.B., a minor child who takes medical marijuana as
part of her treatment regimen for uncontrolled epileptic
seizures. Amicus argues that the continued scheduling of
marijuana as a Schedule I narcotic is arbitrary and capricious;
the vast amount of contemporary scientific and medical evidence
as to the efficacy of medical marijuana supports the argument
that the scheduling of medical marijuana as a Schedule I
narcotic is based upon antiquated and outdated scientific
fallacies; and, the scheduling of marijuana is of great public
and personal importance to amicus and any similarly situated
individuals in this state.
I.
Well-recognized principles ascribe a "limited role" to our
review of administrative agency determinations. In re
Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway
State Prison, 81 N.J. 571, 579 (1980)). We will not reverse an
agency's judgment unless we find the decision to be "arbitrary,
capricious, or unreasonable, or [ ] not supported by substantial
credible evidence in the record as a whole." Ibid. (quoting
Henry, supra, 81 N.J. at 579-80). Our inquiry is limited to:
(1) whether the agency's action violated the
legislative policies expressed or implied in
the act governing the agency; (2) whether
the evidence in the record substantially
4 A-3324-14T4
supports the findings on which the agency's
actions were premised; and (3) "whether in
applying the legislative policies to the
facts, the agency clearly erred in reaching
a conclusion that could not reasonably have
been made on a showing of the relevant
factors."
[Barrick v. State, 218 N.J. 247, 260 (2014)
(quoting In re Carter, 191 N.J. 474, 482
(2007)).]
We owe no deference to an administrative agency's
"interpretation of a statute or its determination of a strictly
legal issue." L.A. v. Bd. of Educ., 221 N.J. 192, 204 (2015)
(quoting Mayflower Sec. v. Bureau of Securities, 64 N.J. 85, 93
(1973)).
The CSA places hazardous drugs in five categories, or
schedules, which impose varying restrictions on access to the
drugs. See 21 U.S.C.A. § 812 (1988). Marijuana is assigned by
statute to Schedule I, the most restrictive of these. A drug is
placed in Schedule I if (1) it "has a high potential for abuse,"
(2) it has "no currently accepted medical use in treatment in
the United States," and (3) "there is a lack of accepted safety
for use of the drug . . . under medical supervision." Ibid.
In 1971, the New Jersey Controlled Dangerous Substances Act
(CDSA), N.J.S.A. 24:21-1 to -56, became effective and gave the
Director the authority to "add substances to or delete or
reschedule all substances enumerated in the schedules." N.J.S.A.
5 A-3324-14T4
24:21-3(a). In determining whether to control a substance, the
Director is obligated to consider:
(1) Its actual or relative potential for
abuse;
(2) Scientific evidence of its
pharmacological effect, if known;
(3) State of current scientific knowledge
regarding the substance;
(4) Its history and current pattern of
abuse;
(5) The scope, duration, and significance of
abuse;
(6) What, if any, risk there is to the
public health;
(7) Its psychic or physiological dependence
liability; and
(8) Whether the substance is an immediate
precursor of a substance already controlled
under this article.
[Ibid.]
After considering the above factors, the Director is
required to "make findings . . . and . . . issue an order
controlling the substance if he finds that the substance has a
potential for abuse." Ibid. The Director is required to
"similarly control" any "substance . . . designated, rescheduled
or deleted as a controlled dangerous substance under Federal
law." N.J.S.A. 24:21-3(c).
6 A-3324-14T4
At the outset, we note a conflict between section (a) of
N.J.S.A. 24:21-3, which appears to grant the Director the
authority to "add substances to or delete or reschedule all
substances," and subsection (c) which seemingly limits the
Director's ability to reclassify controlled dangerous substances
differently than they are classified under federal law.
Our Supreme Court provided guidance in resolving this
conflict when it decided State v. Tate, 102 N.J. 64 (1986).
Tate involved a quadriplegic defendant charged with possession
of marijuana. Id. at 66-67. The defendant argued his use of
marijuana was a "medical necessity" because it was the only
treatment that eased the pain of recurring, spastic contractions
which at times were "so severe as to render [him] completely
disabled." Ibid.
A divided Court rejected Tate's argument. Writing for the
majority, Justice Clifford noted that N.J.S.A. 24:21-5(a)
classified marijuana as a Schedule I controlled dangerous
substance, which indicated that "the legislature has determined
that marijuana has 'high potential for abuse' and has 'no
accepted medical use in treatment . . . or lacks accepted safety
for use in treatment under medical supervision.'" Id. at 70.
However, Justice Clifford also observed that the
Legislature "demonstrated foresight by leaving room for the
7 A-3324-14T4
possibility that scientific developments and advances in
knowledge could ultimately render marijuana's Schedule I
classification inappropriate," and noted that N.J.S.A. 24:21-
3(a) "granted to the Commissioner of Health the authority to
reschedule marijuana . . . giving consideration to, inter alia,
current scientific knowledge." Id. at 71. Years later, Justice
Clifford's words would prove prophetic.
Clearly, the CDSA did not contemplate a medicinal exception
for the use or possession of marijuana. Indeed, when the CDSA
was enacted, no state permitted the medicinal use of marijuana.
In 1996, California became the first state to legalize medical
marijuana.3 In 2010, New Jersey enacted CUMMA, creating a
limited exception, de-criminalizing possession of marijuana for
medical use by qualifying patients who obtain the appropriate
registry identification card. N.J.S.A. 24:6I-6; N.J.S.A. 2C:35-
17.
Currently, twenty-nine states, the District of Colombia,
Puerto Rico, and Guam, have legalized medical marijuana; twenty-
one states and the District of Columbia have decriminalized the
possession of marijuana; and eight states and the District of
3
Cal. Health & Safety Code § 11362.5.
8 A-3324-14T4
Columbia have passed laws regulating the recreational use of
marijuana in the same manner as alcohol.4
Scientific research suggests that marijuana has "potential
therapeutic value" for "pain relief, control of nausea and
vomiting, and appetite stimulation." Institute of Medicine,
Marijuana and Medicine: Assessing the Science Base (J. Joy, S.
Watson, and J. Benson eds. 1999),
http://medicalmarijuana.procon.org/sourcefiles/IOM_Report.pdf .
In addition, it has been reported that marijuana: reduces
muscle spasms and spasticity; reduces intraocular pressure; and
reduces anxiety. Ibid. Moreover, marijuana has been used
successfully to treat the debilitating symptoms of cancer and
cancer chemotherapy, AIDS, multiple sclerosis, epilepsy,
glaucoma, anxiety, and other serious illnesses. Ibid.
Amicus L.B., on behalf of her daughter G.B., argues the
continued classification of marijuana as a Schedule I controlled
dangerous substance frustrates the purposes of CUMMA and denies
G.B. the constitutionally protected right to a free and
appropriate education.
G.B., a teenager, suffers from uncontrolled grand mal and
petit mal epileptic seizures. Before she was prescribed medical
4
For a list of states that have decriminalized or legalized
marijuana, see http://norml.org/marijuana/personal .
9 A-3324-14T4
marijuana, G.B. suffered at least one grand mal and several
petit mal seizures daily. Since she began taking medical
marijuana as part of her treatment regimen, her grand mal
seizures decreased by forty to fifty per-cent with greatly
reduced severity, and her petit mal seizures were "essentially
eliminated." L.B. confirmed that medical marijuana is the only
medication that significantly reduces her daughter's seizures.
G.B.'s doctor prescribed four to five doses of medical
marijuana per day, with one dose given at lunchtime.5 G.B.
attends a special education school, located approximately thirty
minutes from her home. When G.B.'s parents requested that the
school's nurse administer G.B.'s medical marijuana, the school
refused because marijuana is a Schedule I substance and cannot
be permitted on school grounds. G.B. was required to leave
school at lunchtime to receive her medication and did not return
to school, causing her to miss a half day of school each day.
L.B. petitioned the Department of Education (DOE) to
require the school to administer G.B.'s medication. The matter
was referred to the Office of Administrative Law. After hearing
oral argument, an administrative law judge (ALJ) dismissed
L.B.'s petition, noting that marijuana was a Schedule I
5
The medical marijuana prescribed to G.B. is in oil form and can
be taken mixed with a liquid.
10 A-3324-14T4
substance, and because N.J.S.A. 2C:35-7 prohibited dispensing or
possessing it with intent to distribute within 1000 feet of
school property, the school nurse was not authorized to
administer G.B.'s medication.
L.B. then filed a petition for emergent relief to permit
her to come to school each day at lunchtime to administer her
daughter's medical marijuana during school hours. The school
opposed the petition and proposed alternatively that L.B. travel
to school, pick up her daughter, take her at least 1000 feet
away from school grounds, administer the medication, and return
her to school. On September 15, 2015, the ALJ denied the
petition, finding L.B. had not met the standards for emergent
relief set for the in Crowe v. DeGoia, 90 N.J. 126 (1982). The
judge did note that CUMMA was in "direct conflict" with the
school zone statute, N.J.S.A. 2C:35-7.
On November 9, 2015, N.J.S.A. 18A:40-12.22 became effective
which permits "parents, guardians, and primary caregivers to
administer medical marijuana to a student while the student is
on school grounds." The amendment does not authorize school
personnel, including nurses, to administer medical marijuana.6
6
On November 14, 2016, a Bill was introduced in the Senate,
which would allow for secondary caregivers to administer medical
marijuana to qualifying patients. S. 2794, 217th Leg. (2016).
The Bill defines a secondary caregiver as an "adult employee of
(continued)
11 A-3324-14T4
G.B. observes that if marijuana was reclassified as a
Schedule III drug, school nurses would be able to administer her
prescribed doses of medical marijuana. Because G.B. is not able
to receive marijuana at school, she attends only half days and
claims she is not receiving an appropriate education.
The CDSA requires the Director to place a substance in
Schedule I "if he finds that the substance: (1) has high
potential for abuse; and (2) has no accepted medical use in
treatment in the United States; or lacks accepted safety for use
in treatment under medical supervision." N.J.S.A. 24:21-5(a).
While there may have been "no accepted medical use in
treatment in the United States" for marijuana when the CDSA
became effective, any argument suggesting that premise is still
valid in the post-CUMMA era strains credulity beyond acceptable
boundaries.7 Medical benefits from the use of marijuana not
known in 1971, when the CDSA became effective, or in 1986, when
Tate was decided, and impediments to its lawful use as a result
of its Schedule I classification, are abundant and glaringly
apparent now.
(continued)
a patient's school or facility . . . who is authorized . . . by
the patient for primary caregiver."
7
The State appears to concede, "for purposes of argument" only,
that the enactment of CUMMA supports a finding that marijuana
has an accepted medical use in treatment.
12 A-3324-14T4
Similarly, the statement by the Tate Court that "the value
of medical use of marijuana cannot be deemed to outweigh the
values served by its prohibition," 102 N.J. at 74, must now be
questioned and perhaps revisited, especially when considering
the difficulties encountered by G.B. and others who may be
similarly situated, caused by the Schedule I classification.
In 2005, the Supreme Court decided Gonzales v. Raich, 545
U.S. 1, 125 S. Ct. 2195, 162 L. Ed. 2d 1 (2005), involving two
seriously ill California citizens (patients) who used marijuana
for medical purposes on the recommendation of their doctors.
One patient suffered from an inoperable brain tumor and a
seizure disorder. Her doctor opined that without marijuana
treatments she would suffer excruciating pain and could very
well die. Id. at 6-7, 125 S. Ct. at 2199-2000, 162 L. Ed. 2d at
12. Local sheriffs and agents from the Drug Enforcement Agency
came to the home of one of the patients. Although the county
officials concluded the marijuana use was permissible under
California law, the federal agents seized and destroyed all six
of the patient's marijuana plants. Id. at 7, 125 S. Ct. at 2200,
162 L. Ed. 2d at 12-13.
The patients sought injunctive and declaratory relief
against the enforcement of federal CSA as it pertains to their
13 A-3324-14T4
cultivating and using marijuana for doctor-prescribed purposes.
Id. at 7, 125 S. Ct. at 2200, 162 L. Ed. 2d at 12.
The Supreme Court held that Congress' authority under the
Commerce Clause includes the power to prohibit intrastate
cultivation and use of marijuana, even if it is in compliance
with California law. Id. at 32-33, 125 S. Ct. at 2214-215, 162
L. Ed. 2d at 28-29. However, the Court "acknowledge[d] that
evidence proffered by respondents in this case regarding the
effective medical uses for marijuana, if found credible after
trial, would cast serious doubt on the accuracy of the findings
that require marijuana to be listed in Schedule I." Id. at 27
n.37, 125 S. Ct. at 2211 n.37, 162 L. Ed. 2d at 25 n.37.
Upon review, marijuana's continued classification as a
Schedule I substance in New Jersey, would depend, in part, on a
determination that it has a high potential for abuse and, if so,
whether that factor justifies continued inclusion in the face of
compelling evidence of accepted medical use and impediments to
its legal use which may be attributable to its classification.
The State concedes there is disagreement in the medical
community as to whether marijuana poses a high potential for
abuse.
14 A-3324-14T4
While this issue is not squarely before us, it is certainly
ripe for a determination by the Director.8 When the
inconsistencies of sections (a) and (c) of N.J.S.A. 24:21-3 are
viewed through the prism of the dicta9 in Tate, we conclude that
the Director erred in determining he lacked the authority to
reclassify marijuana without a change in existing federal law.
Our dissenting colleague suggests that the sole issue
presented by this appeal is whether the Director "was required
to reschedule marijuana, removing it from Schedule I of the
8
Other courts have rejected arguments that it is
unconstitutional for the government to continue to classify
marijuana as a Schedule I controlled substance. See e.g.,
Americans for Safe Access v. DEA, 706 F.3d 438, 453 (D.C. Cir.
2013) (finding DEA's denial of petition to reclassify marijuana
as a Schedule III, IV or V drug was not arbitrary or
capricious); United States v. Ernst, 857 F. Supp. 2d 1098, 1103-
04 (D. Or. 2012) (rejecting defendant's claim that continued
classification of marijuana as Schedule I substance violated his
due process and equal protection rights); Cracker v. DEA, 714
F.3d 17, 19 n.1 (1st Cir. 2013) ("Although considerable efforts
have been made to reschedule marijuana, it remains a Schedule I
substance."). These cases, brought by defendants prosecuted for
criminal violations, do not address problems caused by the
Schedule I classification experienced by lawful medical
marijuana users.
9
Our dissenting colleague notes that the language we rely on in
Tate is dicta and suggests that is "not germane to that
holding." Post at 21. Even though Justice Clifford's statement
that the Commissioner of Health has authority to reschedule
marijuana may not have been "essential to the disposition of the
case," it is nevertheless authoritative as "it is expressly
declared by the court as a guide for future conduct" and must be
considered a "binding decision[] of the court." State v. Rose,
206 N.J. 141, 182-83 (2011) (quoting 21 C.J.S. Courts §230
(2006) and 5 Am. Jur. 2d Appellate Review § 564 (2007).
15 A-3324-14T4
[CDSA]." Post at 1. To be clear, our opinion does not mandate
reclassification, we simply hold that the Director erred in
determining he lacked authority to reclassify. We note that if
the Director decides to remove marijuana from Schedule I, that
would not decriminalize it, as possession or sale of substances
under other schedules are illegal. See, e.g., N.J.S.A. 2C:35-5
(13) (Schedule I, II, III, IV substances); N.J.S.A. 2C:35-5 (14)
(Schedule V substance).
N.J.S.A. 24:21-3(c) provides:
If any substance is designated,
rescheduled or deleted as a controlled
dangerous substance under federal law and
notice thereof is given to the director, the
director shall similarly control the
substance under P.L.1970, c.226, as amended
and supplemented, after the expiration of 30
days from publication in the Federal
Register of a final order designating a
substance as a controlled dangerous
substance or rescheduling or deleting a
substance, unless within that 30-day period,
the director objects to inclusion,
rescheduling, or deletion. In that case,
the director shall cause to be published in
the New Jersey Register and made public the
reasons for his objection and shall afford
all interested parties an opportunity to be
heard. At the conclusion of any such
hearing, the director shall publish and make
public his decision, which shall be final
unless the substance is specifically
otherwise dealt with by an act of the
Legislature. Upon publication of objection
to inclusion or rescheduling under P.L.1970,
c.226 (C.24:21-1 et seq.) by the director,
control of such substance under this section
shall automatically be stayed until such
16 A-3324-14T4
time as the director makes public his final
decision.
The director may by regulation exclude
any nonnarcotic substance from a schedule if
such substance may, under the provisions of
federal or State law, be lawfully sold over
the counter without a prescription, unless
otherwise controlled pursuant to rules and
regulations promulgated by the division.
The dissent argues that any such action by the Director is
precluded because the objection "must be made within the thirty-
day period following publication; there is no authority granted
to the Director to object thereafter." Post at 11. However, 21
U.S.C.A. 812(a), requires that the five schedules of controlled
substances "shall be updated and republished on a semiannual
basis during the two-year period beginning one year after the
date of enactment of this title [enacted Oct. 27, 1970] and
shall be updated and republished on an annual basis thereafter."
N.J.S.A. 24:21-3(d) provides that the "director shall update and
republish the schedules in sections 5 through 8.1 of P.L.1970,
c.226, as amended and supplemented . . . periodically." At a
minimum, the thirty-day window permitting the Director to object
to a schedule classification, will reoccur on an annual basis.
Our dissenting colleague cites no authority to support her
conclusion that the Director may only object to "a new decision
made regarding the federal schedules" and "is not authorized to
revisit established federal schedules and differ with the
17 A-3324-14T4
designations already made." Post at 11. If the Legislature had
intended to place such limitations on the Director's review, it
surely could have done so in the statute. Moreover, a review of
classification by the Director based, not on changes to the
federal schedule, but on "scientific developments and advances
in knowledge [which] could ultimately render marijuana's
Schedule I classification inappropriate" is exactly what the
Tate Court anticipated. Tate, supra, 102 N.J. at 71.
Finally, we reject our dissenting colleague's conclusion
that "[b]ecause [N.J.S.A. 24:21-3(a)] applies to the Director's
decision '[i]n determining whether to control a substance,'
(emphasis in dissent), it presupposes the substance in question
is not controlled at the time of the determination, that it is
not listed on any federal schedule and that the Director is
making an initial determination to control it or not." This
finding is unsupported by any authority and is contradicted by
N.J.S.A. 24:21-3(a) which clearly states "The director may add
substances to or delete or reschedule all substances enumerated
in the schedules in [N.J.S.A. 24:21-5 through N.J.S.A. 24:21-
8.1]." (Emphasis added). The original bill incorporated a large
list of substances pre-scheduled upon enactment, including
"Marihuana." The Director is authorized to add, delete, or
reschedule all substances enumerated, and is not limited to
18 A-3324-14T4
substances "not controlled at the time of the determination" as
our colleague suggests.
This matter is remanded to the Director for proceedings
consistent with our opinion. We do not retain jurisdiction.
19 A-3324-14T4
________________________________
ESPINOSA, J.A.D., dissenting.
The question presented by this appeal is whether, as a
result of evolving attitudes about marijuana and its potential
for medical uses, the Director of the Division of Consumer
Affairs was required to reschedule marijuana, removing it from
Schedule I of the New Jersey Controlled Dangerous Substances Act
(CDSA), N.J.S.A. 24:21-1 to -56. The Director's decision that
he was required, instead, to control marijuana in accord with
federal schedules is subject to limited appellate review.
Circus Liquors, Inc. v. Governing Body of Middletown, 199 N.J.
1, 9 (2009). In light of the unambiguous language of N.J.S.A.
24:21-3(c) that the Director adhere to federal schedules, his
decision must be sustained because there is no "'clear showing'
that it is arbitrary, capricious, or unreasonable or that it
lacks fair support in the record." Ibid.
My colleagues conclude the Director erred in his
interpretation of the law but do not conclude the Director's
decision was arbitrary, capricious or unreasonable or consider
that a fair interpretation of the governing statute provides
support for his decision. They have elected to decide an issue
they acknowledge "is not squarely before us." Despite the clear
directive in N.J.S.A. 24:21-3(c), the majority concludes the
Director may reconsider the classification of marijuana, placing
it on a schedule different from its designation on the federal
schedules and, because the issue is "ripe for determination" by
the Director, remands the issue for his consideration.
The necessary premise for this conclusion is that the
Director has the discretion to make a major policy decision
regarding the scheduling of marijuana that directly conflicts
with the legislative mandate contained in N.J.S.A. 24:21-3(c)
and federal law. That premise cannot withstand the application
of established principles of statutory construction.
First of all, the plain language of N.J.S.A. 24:21-3(c)
requires that the schedules established by the Director be the
same as the federal schedules. The legislative scheme provided
by the CDSA reflects that N.J.S.A. 24:21-3(c) is but one
expression of the Legislature's recognition of the primacy of
federal regulation in this area.1 See State v. Metcalf, 168 N.J.
1
N.J.S.A. 26:2L-6(a) explicitly makes the Controlled Dangerous
Substances Therapeutic Research Act (TRA), N.J.S.A. 26:2L-1 to -
9 subject to federal law. ("The commissioner shall enter into an
agreement with the National Institute on Drug Abuse for receipt
of a Schedule I controlled dangerous substance for the purposes
prescribed in this act, subject to the provisions of all Federal
controlled dangerous substances laws and rules adopted pursuant
to such laws." (Emphasis added)). See also N.J.S.A. 26:2L-7;
N.J.S.A. 26:2L-8; N.J.S.A. 26:2L-9 and N.J.A.C. 13:45H-10.1,
which incorporates the federal controlled dangerous substance
schedules by reference, N.J.A.C. 13:45H-10.1(a) and identifies
(continued)
2 A-3324-14T4
Super. 375, 378 (App. Div.) (observing the CDSA "is modeled, and
is largely dependent, on the corresponding federal regulatory
provisions"), certif. denied, 81 N.J. 411 (1979). A review of
extrinsic evidence similarly establishes the mandatory nature of
N.J.S.A. 24:21-3(c). Finally, although the Director's decision
is properly affirmed based upon the statute's language and the
Legislature's intent, any decision to schedule marijuana
differently from the federal schedule is preempted by the
federal Controlled Substances Act (CSA), 21 U.S.C.A. § 801 to §
904, pursuant to the Supremacy Clause of the United States
Constitution, U.S. Const. art. VI, cl. 2. For these reasons, I
respectfully dissent.
The majority has reviewed the personal circumstances of the
amicus and cited some reference materials to suggest that the
reclassification of marijuana would be a worthy and
compassionate change in the law whose time has come. Intending
no disrespect to the sincerely held beliefs of persons who
advocate for that outcome, that is not our call to make and, to
provide a broader context for the issue at hand, it should be
recognized that the consequences of removing marijuana from
Schedule I are not trivial.
(continued)
any reference to controlled dangerous substance schedules in the
regulations as the federal schedules, N.J.A.C. 13:45H-10.1(b).
3 A-3324-14T4
Because the drug kingpin statute, N.J.S.A. 2C:35-3 applies
only to "any controlled dangerous substance classified in
Schedule I or II," it is possible that the offense for which the
appellant was convicted would no longer exist.2 See also
N.J.S.A. 2C:35-9 (establishing a first-degree offense and
imposing strict liability for a drug-induced death caused by a
controlled dangerous substance classified in Schedules I or II).
Perhaps the greatest irony that would result from the
suggested reclassification of marijuana lies in the impact it
would have upon the Controlled Dangerous Substances Therapeutic
Research Act (TRA), N.J.S.A. 26:2L-1 to -9. The TRA was
intended to support research that is generally understood to
assess the use of marijuana for medical purposes. The TRA does
not, however, mention marijuana or marihuana by name. Instead,
the Legislature's stated purpose in enacting the TRA was to
support research regarding the "use of certain Schedule I
controlled dangerous substances [to] alleviate the nausea and
2
I do not suggest that the reclassification of marijuana would
have any impact on Kadonsky's conviction. An alteration in its
classification would have no effect because marijuana was on
Schedule I at the time of his offense. See United States v.
Springer, 354 F.3d 772, 775 (8th Cir.) cert. denied, 542 U.S.
914, 124 S. Ct. 2866, 159 L. Ed. 2d 285 (2004); United States v
Jones 480 F.2d 954, 960 (5th Cir.), cert. denied, 414 U.S. 1071,
94 S. Ct. 582, 38 L. Ed. 2d 476, (1973).
4 A-3324-14T4
ill-effects of certain medical treatment, such as cancer
chemotherapy, and, additionally, [to] alleviate the ill-effects
of certain diseases, such as glaucoma." N.J.S.A. 26:2L-2.
Therefore, if, upon remand, the Director elected to remove
marijuana from Schedule I, the research program established by
the TRA to evaluate therapeutic uses of marijuana would be
eviscerated.
I.
"Courts should not reach a constitutional question unless
its resolution is imperative to the disposition of litigation."
Randolph Town Ctr., L.P. v. County of Morris, 186 N.J. 78, 80
(2006). Although the application of principles of statutory
interpretation adequately resolves the issue before us, a brief
discussion of the potential federal preemption issue provides
useful context for the analysis of N.J.S.A. 24:21-3 that
follows.
The CSA established "a closed regulatory system making it
unlawful to manufacture, distribute, dispense, or possess any
controlled substance except in a manner authorized by the CSA."
Gonzales v. Raich, 545 U.S. 1, 13, 125 S. Ct. 2195, 2203, 162 L.
Ed. 2d 1, 16 (2005) (citing 21 U.S.C.A. §§ 841(a)(1), 844(a).
"By classifying marijuana as a Schedule I drug," Congress made
"the manufacture, distribution, or possession of marijuana . . .
5 A-3324-14T4
a criminal offense, with the sole exception being use of the
drug as part of a Food and Drug Administration pre-approved
research study." Id. at 14, 125 S. Ct. at 2204, 162 L. Ed. 2d
at 17. The research program established by the TRA is
correspondingly "limited to therapeutic research programs
presently conducted by the Bureau of Drugs in the Food and Drug
Administration of the U.S. Department of Health and Human
Services or its successor." N.J.S.A. 26:2L-4(a).
21 U.S.C.A. § 903 defines the scope of the CSA's
preemption, limiting it to circumstances where "there is a
positive conflict between" a provision of Title 21 and a state
law "so that the two cannot consistently stand together." Ibid.
"Such a conflict can arise when it is impossible to comply with
both federal and state requirements or when state law stands as
an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress." Beek v. City of Wyo., 846
N.W.2d 531, 537 (2014) (citation omitted). When, however, it
is possible to comply with both the CSA's prohibition of
marijuana and a state statute that provides limited state-law
immunity for medical marijuana use, there is no "positive
conflict" that triggers preemption. Id. at 537-38. In enacting
the New Jersey Compassionate Use Medical Marijuana Act (CUMMA),
N.J.S.A. 24:6I-1 to -16, the Legislature expressed its intent to
6 A-3324-14T4
steer clear of such a conflict, declaring that "compliance with
this act does not put the State of New Jersey in violation of
federal law." N.J.S.A. 24:6I-2(d).
An interpretation of N.J.S.A. 24:21-3 as granting the
Director the discretion to remove marijuana from Schedule I
would permit the assertion of regulatory authority untethered to
the limited immunity from state prosecution for medical uses of
marijuana.3 Plainly, if marijuana is deleted from Schedule I,
that provision of the CDSA "cannot consistently stand" with the
CSA's continued prohibition of marijuana and inclusion of
marijuana on the federal Schedule I. Because such action would
conflict with the "closed regulatory system" established by the
CSA, it would run afoul of the purpose Congress expressed in 21
U.S.C.A. 903 and be preempted by federal law.
II.
Our "fundamental objective . . . is to identify and promote
the Legislature's intent," Parsons ex rel. Parsons v. Mullica
Twp. Bd. of Educ., 226 N.J. 297, 307 (2016). The appropriate
starting place for determining the meaning of N.J.S.A. 24:21-3
is its plain language. State v. Gandhi, 201 N.J. 161, 176
3
"Marijuana remains illegal under federal law, even in those
states in which medical marijuana has been legalized." United
States v. Canori, 737 F.3d 181, 184 (2d Cir. 2013) (citing 21
U.S.C.A. § 903).
7 A-3324-14T4
(2010). "If the statutory language is clear and unambiguous,
and susceptible to only one interpretation, courts should apply
the statute as written without resort to extrinsic interpretive
aids." In re Passaic Cty. Utils. Auth., 164 N.J. 270, 299
(2000).
The Director's authority to administer the provisions of
the CDSA is governed by N.J.S.A. 24:21-3. N.J.S.A. 24:21-3(c)
states, in pertinent part,
If any substance is designated, rescheduled
or deleted as a controlled dangerous
substance under federal law . . . the
director shall similarly control the
substance under [the CDSA].
[(Emphasis added).]
The command to "similarly control" any substance scheduled
under federal law is clear and unambiguous. However, the
majority found that a conflict exists between this section,
which states what the director "shall" do and N.J.S.A. 24:21-
3(a), which states what the director "may" do. In describing
this conflict, the majority states subsection (c) "seemingly
limits the Director's ability to reclassify controlled dangerous
substances differently than they are classified under federal
law." (Emphasis added). This mischaracterization of the
statute's plain language opens the door to an elevated
interpretation of subsection (a) that ignores the consequences
8 A-3324-14T4
of the Legislature's use of "shall" and "may" in the two
subsections.
"Under the 'plain meaning' rule of statutory construction,
the word 'may' ordinarily is permissive and the word 'shall'
generally is mandatory." Aponte-Correa v. Allstate Ins. Co.,
162 N.J. 318, 325 (2000). Therefore, when "a statutory
provision contains both the words 'may' and 'shall,' it is
presumed that the lawmaker intended to distinguish between them,
'shall' being construed as mandatory and 'may' as permissive."
Ibid.; see also Diodato v. Camden Cty. Park Comm'n, 136 N.J.
Super. 324, 327 (App. Div. 1975) ("Whenever the word 'shall'
appears in a statute, it creates a presumption that what is thus
commanded must be done."). Clearly, then, the plain language of
this subsection commands the Director to schedule controlled
dangerous substances in conformity with federal schedules.
There is no countervailing command in any of the other
subsections of N.J.S.A. 24:21-3.
N.J.S.A. 24:21-3(a) states, in pertinent part: "The
director may add substances to or delete or reschedule all
substances enumerated in the schedules in [N.J.S.A. 24:21-5
through N.J.S.A. 24:21-8.1]. In determining whether to control
a substance, the director shall consider" certain enumerated
factors. (Emphasis added). There is nothing in subsection (a),
9 A-3324-14T4
however, that absolves the Director of the obligation contained
in subsection (c) to control marijuana in the same manner as it
is controlled under federal law.4
The only opening in N.J.S.A. 24:21-3 for the Director to
disagree with federal designations is found in subsection (c),5
which affords the Director a limited opportunity to object to
the scheduling of a controlled dangerous substance. The scope
of this authority to object is best understood when viewed
within context:
If any substance is designated, rescheduled
or deleted as a controlled dangerous
substance under federal law and notice
thereof is given to the Director, the
Director shall similarly control the
substance under [the CDSA], as amended and
4
The revisions to N.J.S.A. 24:21-3 prior to its enactment also
evince a legislative intent to grant only a limited authority to
the Director under subsection (a). See Parsons, supra, 226 N.J.
at 308 (noting legislative history may provide guidance in
statutory interpretation). The Senate bill provided, "The
commissioner shall administer the provisions of this act and
shall control all substances enumerated in sections 5 through 8
of this act." (Emphasis added). The language thus included both
the command, "shall," and an unlimited scope of control, over
"all substances." Senate Bill No. 851, 194th Legislature (May
7, 1970). The final text of the bill removed "shall,"
substituted the permissive "may," and defined a more limited
scope of authority: "The commissioner shall administer the
provisions of this act and may add substances to or delete or
reschedule all substances enumerated in the schedules in
sections 5 through 8 of this act." In contrast, the command,
"shall," is present in subsection (c) of both the Senate bill
and the law as enacted. L. 1970, c. 226.
5
Subsection (b), which addresses the designation of precursors,
is not relevant to this discussion.
10 A-3324-14T4
supplemented, after the expiration of 30
days from publication in the Federal
Register of a final order designating a
substance as a controlled dangerous
substance or rescheduling or deleting a
substance, unless within that 30-day period,
the director objects to inclusion,
rescheduling, or deletion. In that case,
the director shall cause to be published in
the New Jersey Register and made public the
reasons for his objection and shall afford
all interested parties an opportunity to be
heard. At the conclusion of any such
hearing, the director shall publish and make
public his decision, which shall be final
unless the substance is specifically
otherwise dealt with by an act of the
Legislature. Upon publication of objection
to inclusion or rescheduling under
([N.J.S.A.] 24:21-1 et seq.) by the
director, control of such substance under
this section shall automatically be stayed
until such time as the director makes public
his final decision.
The director may by regulation exclude any
nonnarcotic substance from a schedule if
such substance may, under the provisions of
federal or State law, be lawfully sold over
the counter without a prescription, unless
otherwise controlled pursuant to rules and
regulations promulgated by the division.
[N.J.S.A. 24:21-3(c) (emphasis added).]
The authorization to "object" is therefore limited both as
to the time in which the objection may be made and as to the
federal action to which the Director may object. The objection
11 A-3324-14T4
must be made within the thirty-day period following publication;6
there is no authority granted to the Director to object
thereafter. The authority granted is to object to "a final
order designating a substance as a controlled dangerous
substance or rescheduling or deleting a substance." Ibid.
(Emphasis added). The objection authorized is therefore to
respond to a new decision made regarding the federal schedules.
The Director is not authorized to revisit established federal
schedules and differ with the designations already made. Such a
grant of authority would inexplicably conflict with the command
in this very subsection that the Director "similarly control"
any substance under the CDSA "[i]f [the] substance is
designated, rescheduled or deleted as a controlled dangerous
substance under federal law." Ibid.
When construing a statute, "'the intention of the
Legislature is to be derived from a view of the entire statute'
and all provisions 'must be read together in light of the
general intent of the act.'" Perez v. Zagami, LLC, 218 N.J.
202, 211 (2014) (quoting Hubner v. Spring Valley Equestrian
6
Because N.J.S.A. 24:21-3(d) requires the Director to "update
and republish the schedules in [the CDSA] periodically," the
majority posits that the thirty-day window for objection by the
Director will recur annually. However, that subsection fails to
vest the Director with any authority to depart from the federal
schedules.
12 A-3324-14T4
Ctr., 203 N.J. 184, 195 (2010)). "We presume that the
Legislature created subsections [of a statute] as a cohesive
whole. That presumption cautions against an asserted plain
language reading of [one subsection] that appears at odds with
related phraseology in its sister subsection[]." Ibid.
In my view, an interpretation of N.J.S.A. 24:21-3 that
permits the Director to revisit schedules established by federal
regulation and schedule any controlled substance differently
would yield the type of absurd result that must be avoided.
Perez, supra, 218 N.J. at 214. Any perceived ambiguity is
dispelled by a close reading of the subsections, guided by the
principle that the statute must be read "together as a whole,
giving meaning to each of its parts, harmonizing" the
subsections to effect the Legislature's intent. Wilson ex rel.
Manzano v. City of Jersey City, 209 N.J. 558, 586-87 (2012);
Hubner, supra, 203 N.J. at 194-95; Brown v. Brown, 86 N.J. 565,
577 (1981) ("Each subsection should be read with respect to the
subject matter of the others and in harmony with each other and
with the whole.").
As noted, N.J.S.A. 24:21-3(c) commands the Director to
"similarly control" any substance in accord with federal
schedules. Because subsection (a) applies to the Director's
decision "[i]n determining whether to control a substance,"
13 A-3324-14T4
(emphasis added), it presupposes the substance in question is
not controlled at the time of the determination, that it is not
listed on any federal schedule and that the Director is making
an initial determination to control it or not. Similarly, when
the opportunity to object to federal action included in
subsection (c) is scrutinized, it is reasonably interpreted to
be consistent with the directive that the Director follow
federal schedules in scheduling a substance under the CDSA.
The plain language of the statute, viewed in light of
established principles of statutory construction, therefore
compels the conclusion the Director's decision that he lacks the
authority to depart from federal schedules to remove marijuana
from Schedule I was not arbitrary, capricious or unreasonable.
III.
If, however, I accept the majority's premise that differing
interpretations are possible, a review of extrinsic evidence7
does not support a contrary conclusion.
7
If statutory provisions are susceptible to more than one
interpretation, extrinsic evidence, such as "legislative history
and committee reports," may inform our analysis. Parsons,
supra, 226 N.J. at 308 (quoting State v. Marquez, 202 N.J. 485,
500 (2010)); Wilson, supra, 209 N.J. at 572. Extrinsic evidence
is also properly considered "if a literal reading of the statute
would yield an absurd result, particularly one at odds with the
overall statutory scheme." Ibid.; DiProspero v. Penn, 183 N.J.
477, 493 (2005); see, e.g., Perez, supra, 218 N.J. at 214-16.
14 A-3324-14T4
A.
From the Legislature's first recognition of possible
medical uses of marijuana to the present, it has consistently
drawn a distinction between marijuana for medical uses and
marijuana for non-medical uses. That distinction would cease to
exist if the Director were permitted to remove marijuana from
Schedule I.
Since its inception, the CDSA has listed "Marihuana" in
Schedule I, N.J.S.A. 24:21-5(e)(10). This is consistent with
the scheduling of "marihuana" in the federal statute, 21
U.S.C.A. § 812(c), Schedule I(c)(10), and federal regulations,
21 C.F.R. § 1308.11(d)(23) (2017). The CDSA became effective in
January 1971, L. 1970, c. 226, and I agree with the majority
that it is quite likely the Legislature did not anticipate a
medicinal use for marijuana when it was enacted.
Just eleven years after marijuana was listed on Schedule I,
our Legislature did contemplate such use when it enacted the TRA
and stated its findings:
[M]edical research has shown that the
therapeutic use of certain Schedule I
controlled dangerous substances may
alleviate the nausea and ill-effects of
certain medical treatment, such as cancer
chemotherapy, and, additionally, may
alleviate the ill-effects of certain
diseases, such as glaucoma. The Legislature
further recognizes that there is a need for
further therapeutic research with regard to
15 A-3324-14T4
the use of such controlled dangerous
substances for these purposes under strictly
controlled circumstances.
[N.J.S.A. 26:2L-2 (emphasis added).]
Despite the possibility of therapeutic uses, marijuana
remained a Schedule I controlled dangerous substance. The
Supreme Court noted the Legislature had "weighed the competing
value of medical use of marijuana against the values served by
prohibition of its use or possession," defined "the narrow
circumstances under which" the value of medical use "may be
served," and determined marijuana continued to be prohibited
"[o]utside those narrow circumstances." State v. Tate, 102 N.J.
64, 74 (1986).
In 2009, the Legislature enacted CUMMA and made the
following declaration of its findings:
a. Modern medical research has
discovered a beneficial use for marijuana in
treating or alleviating the pain or other
symptoms associated with certain
debilitating medical conditions, as found by
the National Academy of Sciences' Institute
of Medicine in March 1999;
b. [C]hanging state law will have the
practical effect of protecting from arrest
the vast majority of seriously ill people
who have a medical need to use marijuana;
c. Although federal law currently
prohibits the use of marijuana, the laws of
[thirteen states] permit the use of
marijuana for medical purposes . . . . New
16 A-3324-14T4
Jersey joins this effort for the health and
welfare of its citizens;
d. States are not required to enforce
federal law or prosecute people for engaging
in activities prohibited by federal law;
therefore, compliance with this act does not
put the State of New Jersey in violation of
federal law; and
e. Compassion dictates that a
distinction be made between medical and non-
medical uses of marijuana. Hence, the
purpose of this act is to protect from
arrest, prosecution, property forfeiture,
and criminal and other penalties, those
patients who use marijuana to alleviate
suffering from debilitating medical
conditions, as well as their physicians,
primary caregivers, and those who are
authorized to produce marijuana for medical
purposes.
[N.J.S.A. 24:6I-2 (emphasis added).]
The Legislature thus advanced from recognizing the possible
therapeutic use of marijuana in the TRA to a more concrete
finding, that "[m]odern medical research has discovered a
beneficial use for marijuana." N.J.S.A. 24:6I-2(a).
Significantly, the Legislature acknowledged that the use of
marijuana remained prohibited by federal law, N.J.S.A. 24:6I-
2(c), and made no effort to repeal the statutory mandate that
handcuffed the Director's scheduling of substances to the
17 A-3324-14T4
federal schedules.8 Instead, the Legislature built upon the
narrow exception permitted for medical uses of marijuana,
stating CUMMA was intended to draw "a distinction . . . between
medical and non-medical uses of marijuana." N.J.S.A. 24:6I-
2(e). Moreover, the Legislature expressed no intent to treat
marijuana in the same way for all persons.
We cited this distinction in State v. Myers, 442 N.J.
Super. 287 (App. Div. 2015), certif. denied, 224 N.J. 123
(2016), in rejecting the argument that CUMMA mandated a change
in existing law.9 We observed:
[T]he Legislature intended that "a
distinction be made between medical and non-
medical uses of marijuana." N.J.S.A. 24:6I-
2(e). The Legislature stated that "the
purpose of this act is to protect from
arrest, prosecution, property forfeiture,
and criminal and other penalties, those
patients who use marijuana to alleviate
suffering from debilitating medical
conditions[.]"
[Id. at 298 (alteration in original).]
8
Although CUMMA does not mention the CDSA or, specifically, the
sections applicable to the scheduling of marijuana, we may
presume the Legislature is "familiar with its own enactments"
and intended that CUMMA be construed to serve a purpose that is
"useful and consistent" with its other enactments. In re
Trenton Ordinance 09-02, 201 N.J. 349, 359 (2010) (quoting State
v. Federanko, 26 N.J. 119, 129 (1958)).
9
The defendant argued that, because "possession of marijuana
[was] no longer illegal in all instances, . . . the 'plain
smell' doctrine [applied in search and seizure cases] no longer
applie[d]." Id. at 295.
18 A-3324-14T4
The Legislature retained the criminal penalties for non-
medical uses of marijuana prohibited by N.J.S.A. 2C:35-5(a)(10)-
(12) and marijuana remained a Schedule I controlled dangerous
substance. Id. at 298 n.7 (quoting State v. Wilson, 421 N.J.
Super. 301, 310 n.4 (App. Div. 2011), certif. denied, 209 N.J.
98 (2012)).
In 2015, the Legislature enacted N.J.S.A. 18A:40-12.22(a),
directing boards of education and the chief administrators of
nonpublic schools to "develop a policy authorizing parents . . .
to administer medical marijuana to a student" on school
property. N.J.S.A. 18A:40-12.2. The statute preserved the
distinction drawn by the Legislature between medical and non-
medical uses of marijuana by requiring that the policy be
limited to students and parents authorized to engage in the
medical use of marijuana pursuant to CUMMA. See Assemb. Budget
Comm. Statement to A. 4587 (June 23, 2015) ("The bill provides
that conduct authorized under its provisions falls within the
provisions of N.J.S.[A.] 2C:35-18 and [N.J.S.A. 24:6I-6] that
provide immunity from civil and criminal liability and
professional disciplinary action for persons acting in
accordance with [CUMMA].")
19 A-3324-14T4
The Director's removal of marijuana from Schedule I would
effectively override the Legislature's expressed intent, a
result that militates against the majority's interpretation.
B.
Another source of extrinsic material to aid in statutory
interpretation is an agency's interpretation. Although "we are
'in no way bound by an agency's interpretation of a statute or
its determination of a strictly legal issue,'" Russo v. Bd. of
Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011)
(citation omitted), we defer to agency "expertise and knowledge
in their particular fields." Caminiti v. Bd. of Trs., Police &
Firemen's Ret. Sys., 431 N.J. Super. 1, 14 (App. Div. 2013).
Because the Director is charged with administering the CDSA, his
interpretation of the statute is entitled to "great deference."
In re N.J.A.C. 7:1B-1.1 et seq., 431 N.J. Super. 100, 114-15
(App. Div. 2013) (quoting N.J. Ass'n of Sch. Adm'rs v.
Schundler, 211 N.J. 535, 549 (2012)). "If there is any fair
argument in support of the course taken by the agency or any
reasonable ground for difference of opinion among intelligent
and conscientious officials," the decision should not be
disturbed. Lisowski v. Borough of Avalon, 442 N.J. Super. 304,
330 (App. Div. 2015) (quoting Newark v. Natural Res. Council,
Dep't of Envtl. Prot., 82 N.J. 530, 539 (1980)).
20 A-3324-14T4
In denying plaintiff's request to reschedule marijuana, the
Director noted the authority granted by N.J.S.A. 24:21-3(a) is
permissive rather than mandatory. He identified N.J.S.A. 24:21-
3(c) as providing the applicable mandate regarding the
scheduling of marijuana. Because marijuana continues to be
listed as a Schedule I substance on the federal schedule,10 the
Director observed, "the language of the statute requires that
the substance remain scheduled consistent with federal law."
The Director also addressed and rejected the argument that
CUMMA mandates a different result.11 He found no expression of
legislative intent "to treat marijuana similar to or consistent
with substances listed in Schedules II-V." He noted further the
dual expressions of legislative intent "[i]nherent in the
statutory scheme" that we have recognized: that marijuana not be
considered "legal" for all purposes and that CUMMA was intended
10
The Drug Enforcement Administration recently denied a
petition that sought to initiate proceedings to reschedule
marijuana. 81 Fed. Reg. 53,688 (Aug. 12, 2016) (to be codified
at 21 C.F.R. pt. 1301).
11
Both the Department of Health and the Board of Medical
Examiners concurred that CUMMA did not either reschedule or
permit the rescheduling of marijuana. In commenting on a
regulation promulgated under CUMMA, the Board of Medical
Examiners stated the Legislature "did not reschedule marijuana."
43 N.J.R. 3191(b), 3192 response to comment 2 (Dec. 5, 2011).
Similarly, the Department of Health determined a change in
existing federal law would be necessary for a change in the
classification of marijuana under New Jersey law. 43 N.J.R.
3335(a), 3340 response to comment 24 (Dec. 19, 2011).
21 A-3324-14T4
to prevent the criminal prosecution of patients, their
caregivers and physicians for the medical use of marijuana
consistent with the law. Myers, supra, 442 N.J. Super. at 298.
The Director's interpretation is supported by the plain
language of the statute, expressions of legislative intent and
our own review of legislative action. His view was therefore
entitled to deference. In sum, a review of pertinent extrinsic
evidence fails to support the conclusion that subsection (a)
authorizes the Director to reschedule a controlled substance in
a manner that is inconsistent with the federal schedule.
IV.
Finally, I am unpersuaded by the majority's reliance upon
dicta in Tate as providing support for its interpretation.
In Tate, supra, 102 N.J. at 73, the Court rejected a
defendant's argument that, as a result of the TRA, the defense
of necessity was available to a defendant who did not obtain a
valid prescription for marijuana. In a comment not germane to
that holding, the Court observed that, by enacting N.J.S.A.
24:21-3(a), the Legislature left room for the possibility that
marijuana could be rescheduled with "consideration to, inter
alia, current scientific knowledge." Id. at 71. The Court did
not mention the federal schedules or subsection (c) at all in
its opinion, let alone rule that the permissive authority
22 A-3324-14T4
granted by N.J.S.A. 24:21-3(a) took precedence over the mandate
in N.J.S.A. 24:21-3(c) that substances be scheduled consistent
with federal law.
"[A]s an intermediate appellate court, we are bound by the
holdings of our Supreme Court where it has spoken clearly on a
subject." Moscatello ex rel. Moscatello v. Univ. of Med. and
Dentistry of N.J., 342 N.J. Super. 351, 363-64 (App. Div.),
certif. denied, 170 N.J. 207 (2001). As the majority
acknowledges, the language relied upon is dicta, not a holding.
Moreover, Tate was decided before the passage of CUMMA, in which
the Legislature preserved the distinction between medical and
non-medical uses for marijuana. Therefore, the Court's
observation does not offer such clarity on the subject to
require the result adopted by the majority.
For these reasons, I would affirm the Director's decision.
23 A-3324-14T4