NJ Must Consider Marijuana Reclassification

NJ Must Consider Marijuana Reclassification

The State of New Jersey must at least consider removing marijuana from the Schedule I list of controlled dangerous substances, according to a recent Appellate Division decision. In so ruling, the appeals court rejected the argument that the state needed to wait for the federal government to act first.

New Jersey Controlled Dangerous Substances Law

Like its federal counterpart, the New Jersey Controlled Dangerous Substances Law classifies drugs into certain “schedules,” and restricts access to them accordingly. Pursuant to N.J.S.A. 24:21-5(a), the Director of the Division of Consumer Affairs (Division) “shall place a substance in Schedule I if he finds that the substance: (1) has high potential for abuse; and (2) has no accepted medical use in treatment in the United States; or lacks accepted safety for use in treatment under medical supervision.”

Petition to Reschedule Marijuana under New Jersey Law

In 2014, Steven Kadonsky, an inmate serving a sentence for marijuana trafficking, filed a petition with the Division seeking to have marijuana rescheduled from a Schedule I controlled dangerous substance to Schedule IV. 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) in 2010, marijuana no longer satisfied the requirements for inclusion in Schedule I.

On January 9, 2015, the acting director (Director) of the Division denied Kadonsky’s petition, citing that marijuana has been listed as a Schedule I substance since the passing of the federal CSA. The Director further noted that 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.”

In further support of the denial, the Director concluded that there was no indication that, in passing CUMMA, the Legislature intended “to treat marijuana similar to or consistent with substances listed in Schedules II – V.” Additionally, the Director suggested that federal law prohibited the state from rescheduling marijuana.

On appeal, the Appellate Division allowed a New Jersey teenager, identified as G.B., to participate as amicus. According to court documents, G.B. uses marijuana to alleviate the seizures caused by her epilepsy. However, because it is a Schedule I drug, she can’t receive it while at school. Accordingly, G.B.’s amicus brief argued that scheduling of marijuana is preventing her from obtaining a full education. Citing marijuana’s proven therapeutic benefits, G.B. also noted the great public and personal importance to patients who depend on it.

NJ Appeals Court Rules Cannabis Reclassification Is Possible

By a vote of 2-1, the Appellate Division ruled that the Division must fully consider the petition before issuing a denial. “[W]e conclude that the director erred in determining he lacked the authority to reclassify marijuana without a change in existing federal law,” the panel held.

In reaching its decision, the Appellate Division rejected the Division’s reliance on the Supreme Court of New Jersey’s 1986 decision in State v. Tate. According to the court, a lot has changed since the state’s highest court ruled that marijuana had no accepted medical value. As the majority explained:

While there may have been “no accepted medical use in treatment in the United States” for marijuana when the CDSA became effective, any argument suggesting that premise is still valid in the post-CUMMA era strains credulity beyond acceptable boundaries. Medical benefits from the use of marijuana not known in 1971, when the CDSA became effective, or in 1986, when Tate was decided, and impediments to its lawful use as a result of its Schedule I classification, are abundant and glaringly apparent now.

According to the Appellate Division, “marijuana’s continued classification as a Schedule I substance in New Jersey, would depend, in part, on a determination that it has a high potential for abuse and, if so, whether that factor justifies continued inclusion in the face of compelling evidence of accepted medical use and impediments to its legal use which may be attributable to its classification.” While the court acknowledged that the issue was not squarely before it, the panel concluded that it was “ripe for determination by the Director.”

The Appellate Division stopped short of ruling that the Division must reschedule marijuana. However, it did clarify that federal law should not be viewed as an impediment. This is particularly important given that the administration that will succeed Gov. Christie is predicted to be much more cannabis-friendly.

This article is a part of a series pertaining to cannabis legalization in New Jersey and the United States at large. Prior articles in this series are below:

• One Step Closer To Expansion Of NJ Medical Marijuana Program
• Legal Cannabis States Pushing Back Against Sessions’ Warning Letters
• Harmony Foundation Receives Permit To Grow Medical Marijuana

If you have any questions or if you would like to discuss the matter further, please contact me, Dan McKillop, at 201-806-3364.

Disclaimer: Possession, use, distribution, and/or sale of cannabis is a Federal crime and is subject to related Federal policy. Legal advice provided by Scarinci Hollenbeck, LLC is designed to counsel clients regarding the validity, scope, meaning, and application of existing and/or proposed cannabis law. Scarinci Hollenbeck, LLC will not provide assistance in circumventing Federal or state cannabis law or policy, and advice provided by our office should not be construed as such.