Appellate Law NJ Blog
  • Home
  • Bruce Greenberg

A Marijuana Case Likely Headed for the Supreme Court

Posted by Bruce D. Greenberg on Nov 1, 2017 in Administrative agency actions, Appellate Division, Judges, Statutory interpretation | 0 comments

Kadonsky v. Lee, 452 N.J. Super. 198 (App. Div. 2017).  In this appeal, plaintiff petitioned the New Jersey Division of Consumer Affairs (“the Division”) to have marijuana rescheduled from a Schedule I Controlled Dangerous Substance to a Schedule IV or V substance.  The Controlled Dangerous Substances Act, N.J.S.A. 24:21-1 to -56, which gives the Director of the Division power to add, delete, or reschedule controlled substances.  Plaintiff noted that when the Legislature passed the Compassionate Use Medical Marijuana Act, N.J.S.A. 24:6I-1 to -16 (“CUMMA”), in 2010, the Legislature found that marijuana had a beneficial use in treating or alleviating pain from medical conditions.  Plaintiff contended that “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).”

The Director of the Division denied plaintiff’s petition on multiple grounds.  The Director found that federal law prohibited rescheduling, that New Jersey statute required New Jersey to follow the federal schedules, that the Legislature did not indicate any intention to treat marijuana similarly to substances in Schedules other than Schedule I, and the New Jersey Department of Health and the Board of Medical Examiners had “interpreted CUMMA as neither rescheduling nor permitting the rescheduling of marijuana.”

Plaintiff appealed to the Appellate Division, which split 2-1.  Judge Guadagno wrote the majority opinion, in which Judge Messano joined.  That opinion held that the Director had erred in determining that he lacked authority to reschedule marijuana.  The majority was careful to state that its opinion “does not mandate reclassification,” and remanded the matter to the Division for further consideration.

Judge Espinosa dissented.  She contended that, applying the arbitrary and capricious standard of review (which the majority also recognized applied), the Director had acted properly in denying rescheduling of marijuana.

Given the split decision, plaintiff (who is serving a life sentence after pleading guilty under the “drug kingpin” statute, N.J.S.A. 2C:35-3, and therefore has time on his hands) can appeal to the Supreme Court as of right.  The Court may independently be interested in the case, since State v. Tate, 102 N.J. 684 (1986), a split decision that predated CUMMA, was discussed extensively by both Judge Guadagno and  Judge Espinosa.  In Tate, the majority observed that while the Legislature had determined that marijuana had “high potential for abuse” and “no accepted medical use in treatment,” the Legislature had “demonstrated foresight by leaving room for the possibility that scientific developments and advancements n knowledge could ultimately render marijuana’s Schedule I classification inappropriate.”  Thus, Supreme Court review of this case appears highly likely.

 

Leave a Reply Cancel reply

Your email address will not be published. Required fields are marked *

About the Author

Bruce D. Greenberg, a partner of Lite DePalma Greenberg & Afanador, LLC, has more than 35 years of appellate experience.  He has argued dozens of cases in New Jersey’s Appellate Division, and he has handled oral arguments in the Supreme Court of New Jersey and the Third Circuit Court of Appeals as well.  Mr. Greenberg’s appellate cases have ranged from . . more

 

Subscribe

  • reader reader
  • Subscribe to Appellate Law NJ Blog by Email

Archives

Links

  • An Appeal to Reason – California Appellate blog
  • Class Action Blawg
  • De Novo- Virginia Appellate Law blog
  • Florida Appellate Review
  • How Appealing
  • Maine Appeals Blog
  • New York Appellate Law blog
  • NJ Judiciary
  • On Brief – Iowa Appellate Law Blog
  • Third Circuit Blog
  • Third Circuit Court of Appeals

Categories

  • Administrative agency actions
  • Administrative matters
  • Appellate Division
  • Attorneys fees
  • Case management
  • Chancery issues
  • Class actions
  • Constitutional law
  • Consumer protection
  • Contract interpretation
  • Criminal law
  • Discovery
  • Effect of decisions by other courts
  • Judges
  • Jury issues
  • Municipal land use
  • Notable opinion writing
  • Pleadings
  • Practice Pointers
  • Standards of review
  • Statutory interpretation
  • Summary judgment
  • Supreme Court of New Jersey
  • Third Circuit Court of Appeals
  • Uncategorized
  • United States Supreme Court

Tags

Administrative agency actions Arbitration Briefs Chief Justice Stuart Rabner Court Rules Family Part interlocutory vs. final decisions Judge Allison Accurso Judge Anthony Parrillo Judge Carmen Alvarez Judge Carmen Messano Judge Clarkson Fisher Judge D. Brooks Smith Judge Douglas Fasciale Judge Ellen Koblitz Judge Heidi Willis Currier Judge Jack Sabatino Judge Jose Fuentes Judge Julio Fuentes Judge Kent Jordan Judge Marianne Espinosa Judge Marie Lihotz Judge Mary Catherine Cuff Judge Michael Haas Judge Mitchel Ostrer Judge Stephen Skillman Judge Susan Reisner Judge Thomas Ambro Judge Thomas Hardiman Judge Victor Ashrafi Justice Anne Patterson Justice Barry Albin Justice Fabiana Pierre-Louis Justice Faustino Fernandez-Vina Justice Helen Hoens Justice Jaynee LaVecchia Justice Lee Solomon Justice Walter Timpone Law of the case Makeup of court Notice of appeal Prerogative writ appeals Standing Statute of limitations Waiver

Designed by Elegant Themes | Powered by Wordpress