New Jersey Appellate Division Judge Michael Guadagno New Jersey Appellate Division Judge Michael Guadagno

A New Jersey man serving a life sentence for marijuana trafficking, and a young girl with epilepsy who uses marijuana for medical reasons, won a minor victory on Tuesday when a divided appeals court said the state should at least consider removing the drug from its list of the most dangerous controlled substances.

A 2-1 Appellate Division majority stopped short of saying marijuana should be removed as a schedule I narcotic, but said the director of the state Division of Consumer Affairs, who has the authority to reclassify the status of various drugs, should at least have considered the proposition before issuing a flat denial.

DCA Director Steven Lee took the position that he couldn’t reclassify marijuana without running afoul of federal law.

“[W]e conclude that the director erred in determining he lacked the authority to reclassify marijuana without a change in existing federal law,” said Appellate Division Judge Michael Guadagno, who was joined by Judge Carmen Messano.

Judge Marianne Espinosa dissented, saying there was no reason to conclude that Lee acted in an arbitrary, capricious or unreasonable manner in denying the application.

The petition was filed in 2014 by Steven Kadonsky, who is serving a life sentence for marijuana trafficking. In his petition, Kadonsky said marijuana should be removed from schedule I following the state’s passage of the Compassionate Use Medical Marijuana Act, which legalized the use of marijuana for medicinal purposes only.

The appeals court allowed a teenage girl, identified only as G.B., to participate as amicus. Under the supervision of her mother, she uses marijuana to alleviate pain and discomfort associated with her epilepsy, and argued, as well, that marijuana should be removed from schedule I.

Guadagno said there was little guidance on the issue, but noted that the state Supreme Court in 1986 did rule on the use of marijuana for medicinal purposes in State v. Tate. In a divided ruling, the Tate majority said there was no evidence that marijuana had any accepted medical value.

Since then, Guadagno said, that perception has changed: Now dozens of states have allowed marijuana to be used for medicinal purposes, and others now allow its recreational use.

There is now clear scientific evidence, Guadagno said, that marijuana has legitimate medical purposes in alleviating pain for certain patients, and added that the ruling in Tate might be ripe for reconsideration.

Espinosa, in her dissent, said Lee could not have considered removing marijuana from the schedule I list of controlled dangerous substances until the federal government did so. Despite the growing number of states allowing for the medicinal or recreational use of marijuana, the federal government still lists marijuana as a dangerous narcotic.

Kadonsky’s attorney, Joseph Linares, said he has not discussed the ramifications of the ruling with Kadonsky. Linares, of Walsh Pizzi O’Reilly Falanga in Newark, added that he did not know what Kadonsky is hoping for with a possible reclassification.

“I have to discuss that with my client,” Linares said. Presumably, Kadonsky could argue for a reduced sentence if marijuana was no longer classified as a schedule I substance, Linares noted.

Leland Moore, a spokesman for the Attorney General’s Office, said an appeal of the ruling is expected.

G.B.’s attorney, Roger Barbour of Maple Shade, has died since last November’s oral arguments.