A Marijuana Case Likely Headed for the Supreme Court

Kadonsky v. Lee, ___ N.J. Super. ___ (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.