November 29, 2016
appeal from the Division of Consumer Affairs.
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).
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).
Judges Messano, Espinosa, and Guadagno
January 2014, Steven Kadonsky, an inmate serving a sentence
for marijuana trafficking,  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. 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).
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 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
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."
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
[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.
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.
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.
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
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)).]
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)).
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.
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. 24:21-3(a). In determining whether
to control a substance, the Director is obligated to
(1) Its actual or relative potential for abuse;
(2) Scientific evidence of its pharmacological effect, if
(3) State of current scientific knowledge regarding the
(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.
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).
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
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
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.
Justice Clifford also observed that the Legislature
"demonstrated foresight by leaving room for the
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.
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. 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.
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
Columbia have passed laws regulating the recreational use of
marijuana in the same manner as alcohol.
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),
. 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.
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.
teenager, suffers from uncontrolled grand mal and petit mal
epileptic seizures. Before she was prescribed medical
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.
doctor prescribed four to five doses of medical marijuana per
day, with one dose given at lunchtime. 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.
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
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.
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.