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‘Landmark’ Decision Exposes Disconnect in NJ Pot Policy

Superior court orders state to consider reclassifying marijuana as a less tightly controlled substance

marijuana

Given the growing body of research nationwide — and New Jersey’s own medical marijuana law — state officials can no longer credibly claim that cannabis lacks any healthcare value, an appellate court panel ruled.

In what some have called a landmark decision, the superior court ordered the state to consider reclassifying marijuana from a Schedule I drug —like cocaine and heroin, which are considered highly addictive and without accepted medical value — to another category of less-dangerous, but still controlled substances.

“While there may have been no accepted medical use” for the plant when the state’s drug classification system was created, “any suggestion that premise is still valid in the post- (medical marijuana law) era strains credulity beyond acceptable boundaries,” the judges wrote in a decision, issued Tuesday, that highlights the growing disconnect between various cannabis laws.

‘Glaringly apparent’

“Medical benefits from the use of marijuana not known in 1971,” when the state adopted its five-level drug schedule, “are abundant and glaringly apparent now,” they said.

The state’s Division of Law, in the attorney general’s office, plans to appeal the decision, according to a spokesman. Officials have 45 days to file the challenge.

Nationwide, 29 states and the District of Columbia have legalized marijuana and 21 have decriminalized possession of the drug, according to the ruling. At least two-dozen states have adopted medical marijuana programs, including New Jersey, where the Compassionate Use Medical Marijuana Act was signed in 2010. But in most states, and in federal law, cannabis remains classified as a highly addictive, dangerous substance.

While some states have re-classified marijuana through the legislative process, New Jersey is the first to face a court order to reexamine cannabis categorization, according to Joseph Linares, one of the attorneys who challenged the system. The issue “hasn’t been addressed before in this way,” he said.

Regardless of any appeal, the ruling itself does not order the state to shift marijuana to a less-restrictive class or impact the laws related to possession. But it does require the Division of Consumer Affairs, which oversees the drug schedule, to revisit the issue. And, Linares said, the judges’ ruling makes it hard for the state to argue there is no medicinal benefit when another law on the books specifically spells out those benefits.

“A state official cannot offer the argument that there are no medically accepted uses,” Linares said. “We got some clarity on the issue.”

Questioning role of medical marijuana

Incidentally, the ruling came just days before a final draft report by a White House commission on opioid addiction, chaired by Gov. Chris Christie, laid out a detailed plan for addressing drug addiction, but questioned the role of medical marijuana in treating pain and substance-use disorders, and highlighted ongoing concerns about use of the plant.

In the introduction, Christie noted there is a lack of “sophisticated outcome data” on marijuana treatment and its impact, and compared the scenario to the late 1990s and early 2000s, when a limited understanding about the dangers of opioids contributed to widespread overprescribing that seeded today’s epidemic of abuse.

“The Commission urges that the same mistake is not made with the uninformed rush to put another drug legally on the market in the midst of an overdose epidemic,” he wrote.

The New Jersey ruling involved a petition from Steven Kadonsky, who was convicted two decades ago of marijuana trafficking on the state’s “drug kingpin” statute and sentenced to life in prison (he can seek parole after 25 years).

In 2014, Kadonsky petitioned the Division of Consumer Affairs to reschedule cannabis from a Schedule I substance to a Schedule IV or V — the least-restrictive category — based on the adoption of the medical marijuana law, which determined there was a ‘beneficial use’ for the drug. (The change would not have impacted his conviction – or the legality of cannabis in general — but could reduce his sentence.)

The DCA’s acting director denied his petition in 2015, claiming the medical marijuana statute did not prompt a rescheduling and insisting such a change would require a revision to federal law. Kadonsky — with help from Linares and other colleagues at Walsh Law, based in Newark — appealed this decision to the Superior Court and, on Monday, two of the three judges reviewing the case agreed the state had erred in its decision not to address the inmate’s request.

Kadonsky was joined in his argument by a Maple Shade teenager, Genny Barbour, who has autism and a seizure disorder that she treats with prescription cannabis oil. Barbour — whose struggle has been chronicled by NJ.com — had been unable to take her medicine to school because of its classification as a Schedule I drug, which are expressly prohibited from school grounds. As a result, she had been attending classes for only half a day and not able to get a full education, her late-father argued in legal papers.

Reducing seizures

Barbour’s brief claimed that the Schedule I designation is “arbitrary and capricious” and “based upon antiquated and outdated scientific fallacies,” while the “vast amount” of modern scientific evidence suggests that marijuana is beneficial to people with certain medical conditions. In her case, the use of the cannabis oil cut her seizures nearly in half and made them far less severe, the court said.

Reclassifying the drug to a Schedule III or lower would permit school nurses to dispense the medication, the brief noted. (The state has since approved a law that permits minors with developmental disabilities to receive cannabis treatment on school property.)

Those arguments were enough to convince Judges Carmen Massano and Michael Guadagno — the husband of Lt. Gov. Kim Guadagno, the Republican gubernatorial candidate (who has opposed legalizing marijuana) — and a retired justice who is called to hear cases when the court is short-staffed. They said, regardless of the federal law, New Jersey’s drug schedule statute allowed the DCA to reclassify marijuana if it saw fit.

Judge Marianne Espinosa disagreed, suggesting the DCA director was right to defer to federal law and said re-classifying the substance blurs the line between medical and illicit uses. "From the Legislature's first recognition of possible medical uses of marijuana to the present, it has consistently drawn a distinction between marijuana for medical uses and marijuana for nonmedical uses.  That distinction would cease to exist if the Director were permitted to remove marijuana from Schedule I," she wrote.

Linares said the key difference in the two laws is how they determine “accepted medical treatment.” The federal law includes a multipart test, but New Jersey’s statute is based on “plain meaning,” he said.

“You can’t take the position that (marijuana) doesn’t have any value as a medical treatment,” Linares explained, when the state has adopted a separate law outlining how it can be used to treat or relieve symptoms associated with dozens of conditions. And when the DCA does revisit the issue, he said, “they can’t use the same argument.”

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