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Kadonsky v. Lee

Superior Court of New Jersey, Appellate Division

October 31, 2017

STEVE C. LEE, Acting Director of the Division of Consumer Affairs, Respondent.

          Argued November 29, 2016

         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).

          Before Judges Messano, Espinosa, and Guadagno

          GUADAGNO, J.A.D.

         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 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.

         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.


         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 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. 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.

         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).

         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 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 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), . 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 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 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. ...

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