On Oct. 31, a two-judge majority of the Appellate Division decided that the director of the Division of Consumer Affairs erred in concluding that he did not have the authority to reclassify marijuana from a Schedule I illegal substance to a Schedule IV substance beneficial in treating certain medical conditions. (Kadonsky v. Lee, Docket No. A-3324-14T4). The case involved an inmate who was serving a life sentence for marijuana trafficking as well as an amicus curiae who had been granted leave to appear in the matter on behalf of a minor who was taking medical marijuana as part of treatment for an epileptic condition. The amicus argued before the Appellate Division that the continued scheduling of marijuana as a Schedule I narcotic was arbitrary and capricious and that the vast amount of medical evidence supported the argument that the scheduling of medical marijuana as a Schedule I narcotic was based on outdated and antiquated information. We note that under both the federal and New Jersey statutes, a Schedule I controlled substance is deemed to have no accepted medical use, a high potential for abuse, and no method of use under medical supervision.

In support of his decision not to reclassify marijuana, the director pointed out that marijuana had been listed as a Schedule I substance in the Federal Controlled Substances Act (CSA) since 1970 and that a New Jersey statute, N.J.S.A. 24:21-3(c) required that he classify marijuana in the same way as the federal act unless he “objects and follows the appropriate process to make the reasons for his objections public.” The director also concluded that there was no basis to believe that the New Jersey legislature intended to treat marijuana in a way similar to other substances listed in Schedules II-V under the New Jersey Compassionate Use Medical Marijuana Act, N.J.S.A. 24:6I-1216. The Director also concluded that federal law prohibited the rescheduling of marijuana.

After tracing the law that limits the court’s role in reviewing administrative agency determinations to reversal only where the decision was deemed to be arbitrary, capricious or unreasonable, the majority supported its decision in large measure with reference to the 1986 decision of the New Jersey Supreme Court in State v. Tate, 102 N.J. 64. There, writing for a majority, Justice Clifford noted that the New Jersey statute classified marijuana as a Schedule I controlled substance which indicated that the legislature had made the determination that marijuana had no accepted medical use and treatment. Tracing the law, federal and state, since the Tate majority, the Appellate Division recognized that the passage of time and developments in the medical field might very well justify revisiting the matter of Schedule I classification. The majority said that while the issue of reclassification was not squarely before them, it was ripe for determination by the director. Accordingly, the matter was remanded to the director for proceedings consistent with the opinion.

The dissenting judge reviewed legislative history, federal and state, and concluded that statutory language and legislative history confirmed the director’s decision that he lacked authority to reschedule marijuana. She also pointed out that under the Controlled Dangerous Substances Therapeutic Research Act, N.J.S.A. 26:2L-12-9, the legislature intended to support research regarding the use of certain Schedule I controlled dangerous substances to alleviate certain medical problems. She wrote that if the director now elected to remove marijuana from Schedule I, “… the research program established by the TRA to evaluate therapeutic uses of marijuana would be eviscerated.” Additionally, the dissent observed that federal law preempted the issue and that that was another reason why the director lacked authority to reschedule the drug.

This is a complicated matter, and we believe there are valid observations and contentions set forth in both the majority and the dissenting opinions. We commend the Appellate Division, the majority and the dissent, for a scholarly review of the law relative to this matter and await the likely last word by our Supreme Court.