                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-3324-14T4

STEVEN KADONSKY,
                                      APPROVED FOR PUBLICATION
         Appellant,
                                         October 31, 2017
v.                                       APPELLATE DIVISION

STEVE C. LEE, Acting Director
of the Division of Consumer
Affairs,

          Respondent.
_____________________________________________

         Argued November 29, 2016 – Decided October 31, 2017

         Before Judges Messano, Espinosa, and
         Guadagno (Judge Espinosa dissenting).

         On appeal from the Division of Consumer
         Affairs.

         Joseph L. Linares argued the cause for
         appellant (Walsh Pizzi O'Reilly Falanga LLP,
         attorneys; Marc D. Haefner, Selina M. Ellis
         and Mr. Linares, on the briefs).

         Jodi C. Krugman, Deputy Attorney General,
         argued the cause for respondent (Christopher
         S. Porrino, Attorney General, attorney;
         Andrea M. Silkowitz, Assistant Attorney
         General, of counsel; Ms. Krugman, on the
         brief).

         Barbour & Associates, LLC, attorneys for
         amicus curiae, L.B. on behalf of G.B. (Roger
         A. Barbour, on the brief).
     The opinion of the court was delivered by

GUADAGNO, J.A.D. (retired and temporarily assigned on recall).

     In January 2014, Steven Kadonsky, an inmate serving a

sentence for marijuana trafficking,1 filed a petition with the

Director of the Division of Consumer Affairs (Division) seeking

to have marijuana rescheduled from a Schedule I controlled

dangerous substance to Schedule IV.2   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), N.J.S.A. 24:6I-1 to -16, in 2010,

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).

     On January 9, 2015, the acting director (Director) of the

Division denied Kadonsky's petition.   The Director noted that

marijuana has been listed as a Schedule I substance since the


1
  Pursuant to a plea agreement, Kadonsky pled guilty to the "drug
kingpin" statute, N.J.S.A. 2C:35-3, and was sentenced to life
imprisonment with a twenty-five year period of parole
ineligibility. State v. Kadonsky, 288 N.J. Super. 41, 43 (App.
Div.), certif. denied, 144 N.J. 589 (1996).
2
  Alternatively, Kadonsky argued that Schedule V "may be more
proper for marijuana."



                                2                           A-3324-14T4
passing of the federal Controlled Substances Act (CSA) in 1970,

see 21 U.S.C.A. § 812(c), and 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."

    The Director also found no indication that, in passing

CUMMA, the Legislature intended "to treat marijuana similar to

or consistent with substances listed in Schedules II-V."

    The Director observed that both the New Jersey Department

of Health and the Board of Medical Examiners have interpreted

CUMMA as neither rescheduling nor permitting the rescheduling of

marijuana.   Finally, the Director suggested federal law

prohibited rescheduling:

         [T]he   Department   of  Health   noted   that
         marijuana is not approved by the United
         States Food and Drug Administration, and
         cannot   be   prescribed  by   physicians   or
         dispensed by pharmacists.     The Department
         explained that changing the classification
         of marijuana from a Schedule I substance in
         New Jersey would require a change in
         existing federal law.

    Kadonsky appealed and now argues that the Division's

decision is contrary to and inconsistent with the relevant

statutes; rescheduling of marijuana is required; and the

Director's decision renders much of the statutory scheme

superfluous and conflicts with Supreme Court precedent.




                                3                          A-3324-14T4
    We also granted leave to appear as amicus curiae to L.B. on

behalf of G.B., a minor child who takes medical marijuana as

part of her treatment regimen for uncontrolled epileptic

seizures.    Amicus argues that the continued scheduling of

marijuana as a Schedule I narcotic is arbitrary and capricious;

the vast amount of contemporary scientific and medical evidence

as to the efficacy of medical marijuana supports the argument

that the scheduling of medical marijuana as a Schedule I

narcotic is based upon antiquated and outdated scientific

fallacies; and, the scheduling of marijuana is of great public

and personal importance to amicus and any similarly situated

individuals in this state.

                                 I.

    Well-recognized principles ascribe a "limited role" to our

review of administrative agency determinations. In re

Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway

State Prison, 81 N.J. 571, 579 (1980)).    We will not reverse an

agency's judgment unless we find the decision to be "arbitrary,

capricious, or unreasonable, or [ ] not supported by substantial

credible evidence in the record as a whole." Ibid.    (quoting

Henry, supra, 81 N.J. at 579-80).     Our inquiry is limited to:

            (1) whether the agency's action violated the
            legislative policies expressed or implied in
            the act governing the agency; (2) whether
            the evidence in the record substantially



                                 4                            A-3324-14T4
           supports the findings on which the agency's
           actions were premised; and (3) "whether in
           applying the legislative policies to the
           facts, the agency clearly erred in reaching
           a conclusion that could not reasonably have
           been made on a showing of the relevant
           factors."

           [Barrick v. State, 218 N.J. 247, 260 (2014)
           (quoting In re Carter, 191 N.J. 474, 482
           (2007)).]

      We owe no deference to an administrative agency's

"interpretation of a statute or its determination of a strictly

legal issue." L.A. v. Bd. of Educ., 221 N.J. 192, 204 (2015)

(quoting Mayflower Sec. v. Bureau of Securities, 64 N.J. 85, 93

(1973)).

    The CSA places hazardous drugs in five categories, or

schedules, which impose varying restrictions on access to the

drugs. See 21 U.S.C.A. § 812 (1988).   Marijuana is assigned by

statute to Schedule I, the most restrictive of these.    A drug is

placed in Schedule I if (1) it "has a high potential for abuse,"

(2) it has "no currently accepted medical use in treatment in

the United States," and (3) "there is a lack of accepted safety

for use of the drug . . . under medical supervision." Ibid.

    In 1971, the New Jersey Controlled Dangerous Substances Act

(CDSA), N.J.S.A. 24:21-1 to -56, became effective and gave the

Director the authority to "add substances to or delete or

reschedule all substances enumerated in the schedules." N.J.S.A.




                                5                           A-3324-14T4
24:21-3(a).   In determining whether to control a substance, the

Director is obligated to consider:

         (1) Its    actual     or   relative   potential      for
         abuse;

         (2)     Scientific    evidence             of        its
         pharmacological effect, if known;

         (3) State of current scientific             knowledge
         regarding the substance;

         (4) Its     history    and     current    pattern     of
         abuse;

         (5) The scope, duration, and significance of
         abuse;

         (6) What, if any,          risk   there   is    to   the
         public health;

         (7) Its psychic or physiological dependence
         liability; and

         (8) Whether the substance is an immediate
         precursor of a substance already controlled
         under this article.

         [Ibid.]

    After considering the above factors, the Director is

required to "make findings . . . and . . . issue an order

controlling the substance if he finds that the substance has a

potential for abuse." Ibid.     The Director is required to

"similarly control" any "substance . . . designated, rescheduled

or deleted as a controlled dangerous substance under Federal

law." N.J.S.A. 24:21-3(c).




                                    6                               A-3324-14T4
    At the outset, we note a conflict between section (a) of

N.J.S.A. 24:21-3, which appears to grant the Director the

authority to "add substances to or delete or reschedule all

substances," and subsection (c) which seemingly limits the

Director's ability to reclassify controlled dangerous substances

differently than they are classified under federal law.

    Our Supreme Court provided guidance in resolving this

conflict when it decided State v. Tate, 102 N.J. 64 (1986).

Tate involved a quadriplegic defendant charged with possession

of marijuana. Id. at 66-67.   The defendant argued his use of

marijuana was a "medical necessity" because it was the only

treatment that eased the pain of recurring, spastic contractions

which at times were "so severe as to render [him] completely

disabled." Ibid.

    A divided Court rejected Tate's argument.   Writing for the

majority, Justice Clifford noted that N.J.S.A. 24:21-5(a)

classified marijuana as a Schedule I controlled dangerous

substance, which indicated that "the legislature has determined

that marijuana has 'high potential for abuse' and has 'no

accepted medical use in treatment . . . or lacks accepted safety

for use in treatment under medical supervision.'" Id. at 70.

    However, Justice Clifford also observed that the

Legislature "demonstrated foresight by leaving room for the




                                7                           A-3324-14T4
possibility that scientific developments and advances in

knowledge could ultimately render marijuana's Schedule I

classification inappropriate," and noted that N.J.S.A. 24:21-

3(a) "granted to the Commissioner of Health the authority to

reschedule marijuana . . . giving consideration to, inter alia,

current scientific knowledge." Id. at 71.    Years later, Justice

Clifford's words would prove prophetic.

       Clearly, the CDSA did not contemplate a medicinal exception

for the use or possession of marijuana.    Indeed, when the CDSA

was enacted, no state permitted the medicinal use of marijuana.

In 1996, California became the first state to legalize medical

marijuana.3   In 2010, New Jersey enacted CUMMA, creating a

limited exception, de-criminalizing possession of marijuana for

medical use by qualifying patients who obtain the appropriate

registry identification card. N.J.S.A. 24:6I-6; N.J.S.A. 2C:35-

17.

       Currently, twenty-nine states, the District of Colombia,

Puerto Rico, and Guam, have legalized medical marijuana; twenty-

one states and the District of Columbia have decriminalized the

possession of marijuana; and eight states and the District of




3
    Cal. Health & Safety Code § 11362.5.




                                  8                        A-3324-14T4
Columbia have passed laws regulating the recreational use of

marijuana in the same manner as alcohol.4

     Scientific research suggests that marijuana has "potential

therapeutic value" for "pain relief, control of nausea and

vomiting, and appetite stimulation." Institute of Medicine,

Marijuana and Medicine:   Assessing the Science Base (J. Joy, S.

Watson, and J. Benson eds. 1999),

http://medicalmarijuana.procon.org/sourcefiles/IOM_Report.pdf .

In addition, it has been reported that marijuana:   reduces

muscle spasms and spasticity; reduces intraocular pressure; and

reduces anxiety. Ibid.    Moreover, marijuana has been used

successfully to treat the debilitating symptoms of cancer and

cancer chemotherapy, AIDS, multiple sclerosis, epilepsy,

glaucoma, anxiety, and other serious illnesses. Ibid.

     Amicus L.B., on behalf of her daughter G.B., argues the

continued classification of marijuana as a Schedule I controlled

dangerous substance frustrates the purposes of CUMMA and denies

G.B. the constitutionally protected right to a free and

appropriate education.

     G.B., a teenager, suffers from uncontrolled grand mal and

petit mal epileptic seizures.   Before she was prescribed medical


4
  For a list of states that have decriminalized or legalized
marijuana, see http://norml.org/marijuana/personal .



                                 9                            A-3324-14T4
marijuana, G.B. suffered at least one grand mal and several

petit mal seizures daily.   Since she began taking medical

marijuana as part of her treatment regimen, her grand mal

seizures decreased by forty to fifty per-cent with greatly

reduced severity, and her petit mal seizures were "essentially

eliminated."   L.B. confirmed that medical marijuana is the only

medication that significantly reduces her daughter's seizures.

     G.B.'s doctor prescribed four to five doses of medical

marijuana per day, with one dose given at lunchtime.5    G.B.

attends a special education school, located approximately thirty

minutes from her home.   When G.B.'s parents requested that the

school's nurse administer G.B.'s medical marijuana, the school

refused because marijuana is a Schedule I substance and cannot

be permitted on school grounds.    G.B. was required to leave

school at lunchtime to receive her medication and did not return

to school, causing her to miss a half day of school each day.

     L.B. petitioned the Department of Education (DOE) to

require the school to administer G.B.'s medication.     The matter

was referred to the Office of Administrative Law.    After hearing

oral argument, an administrative law judge (ALJ) dismissed

L.B.'s petition, noting that marijuana was a Schedule I


5
  The medical marijuana prescribed to G.B. is in oil form and can
be taken mixed with a liquid.



                                  10                         A-3324-14T4
substance, and because N.J.S.A. 2C:35-7 prohibited dispensing or

possessing it with intent to distribute within 1000 feet of

school property, the school nurse was not authorized to

administer G.B.'s medication.

     L.B. then filed a petition for emergent relief to permit

her to come to school each day at lunchtime to administer her

daughter's medical marijuana during school hours.   The school

opposed the petition and proposed alternatively that L.B. travel

to school, pick up her daughter, take her at least 1000 feet

away from school grounds, administer the medication, and return

her to school.   On September 15, 2015, the ALJ denied the

petition, finding L.B. had not met the standards for emergent

relief set for the in Crowe v. DeGoia, 90 N.J. 126 (1982).      The

judge did note that CUMMA was in "direct conflict" with the

school zone statute, N.J.S.A. 2C:35-7.

     On November 9, 2015, N.J.S.A. 18A:40-12.22 became effective

which permits "parents, guardians, and primary caregivers to

administer medical marijuana to a student while the student is

on school grounds."   The amendment does not authorize school

personnel, including nurses, to administer medical marijuana.6


6
  On November 14, 2016, a Bill was introduced in the Senate,
which would allow for secondary caregivers to administer medical
marijuana to qualifying patients. S. 2794, 217th Leg. (2016).
The Bill defines a secondary caregiver as an "adult employee of
                                                      (continued)


                                11                           A-3324-14T4
     G.B. observes that if marijuana was reclassified as a

Schedule III drug, school nurses would be able to administer her

prescribed doses of medical marijuana.    Because G.B. is not able

to receive marijuana at school, she attends only half days and

claims she is not receiving an appropriate education.

     The CDSA requires the Director to 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." N.J.S.A. 24:21-5(a).

     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.7    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.


(continued)
a patient's school or facility . . . who is authorized . . . by
the patient for primary caregiver."
7
  The State appears to concede, "for purposes of argument" only,
that the enactment of CUMMA supports a finding that marijuana
has an accepted medical use in treatment.



                                 12                           A-3324-14T4
      Similarly, the statement by the Tate Court that "the value

of medical use of marijuana cannot be deemed to outweigh the

values served by its prohibition," 102 N.J. at 74, must now be

questioned and perhaps revisited, especially when considering

the difficulties encountered by G.B. and others who may be

similarly situated, caused by the Schedule I classification.

      In 2005, the Supreme Court decided Gonzales v. Raich, 545

U.S. 1, 125 S. Ct. 2195, 162 L. Ed. 2d 1 (2005), involving two

seriously ill California citizens (patients) who used marijuana

for medical purposes on the recommendation of their doctors.

One patient suffered from an inoperable brain tumor and a

seizure disorder.   Her doctor opined that without marijuana

treatments she would suffer excruciating pain and could very

well die. Id. at 6-7, 125 S. Ct. at 2199-2000, 162 L. Ed. 2d at

12.   Local sheriffs and agents from the Drug Enforcement Agency

came to the home of one of the patients.   Although the county

officials concluded the marijuana use was permissible under

California law, the federal agents seized and destroyed all six

of the patient's marijuana plants. Id. at 7, 125 S. Ct. at 2200,

162 L. Ed. 2d at 12-13.

      The patients sought injunctive and declaratory relief

against the enforcement of federal CSA as it pertains to their




                                13                          A-3324-14T4
cultivating and using marijuana for doctor-prescribed purposes.

Id. at 7, 125 S. Ct. at 2200, 162 L. Ed. 2d at 12.

    The Supreme Court held that Congress' authority under the

Commerce Clause includes the power to prohibit intrastate

cultivation and use of marijuana, even if it is in compliance

with California law. Id. at 32-33, 125 S. Ct. at 2214-215, 162

L. Ed. 2d at 28-29.   However, the Court "acknowledge[d] that

evidence proffered by respondents in this case regarding the

effective medical uses for marijuana, if found credible after

trial, would cast serious doubt on the accuracy of the findings

that require marijuana to be listed in Schedule I." Id. at 27

n.37, 125 S. Ct. at 2211 n.37, 162 L. Ed. 2d at 25 n.37.

    Upon review, 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.

The State concedes there is disagreement in the medical

community as to whether marijuana poses a high potential for

abuse.




                                14                          A-3324-14T4
     While this issue is not squarely before us, it is certainly

ripe for a determination by the Director.8   When the

inconsistencies of sections (a) and (c) of N.J.S.A. 24:21-3 are

viewed through the prism of the dicta9 in Tate, we conclude that

the Director erred in determining he lacked the authority to

reclassify marijuana without a change in existing federal law.

     Our dissenting colleague suggests that the sole issue

presented by this appeal is whether the Director "was required

to reschedule marijuana, removing it from Schedule I of the

8
  Other courts have rejected arguments that it is
unconstitutional for the government to continue to classify
marijuana as a Schedule I controlled substance. See e.g.,
Americans for Safe Access v. DEA, 706 F.3d 438, 453 (D.C. Cir.
2013) (finding DEA's denial of petition to reclassify marijuana
as a Schedule III, IV or V drug was not arbitrary or
capricious); United States v. Ernst, 857 F. Supp. 2d 1098, 1103-
04 (D. Or. 2012) (rejecting defendant's claim that continued
classification of marijuana as Schedule I substance violated his
due process and equal protection rights); Cracker v. DEA, 714
F.3d 17, 19 n.1 (1st Cir. 2013) ("Although considerable efforts
have been made to reschedule marijuana, it remains a Schedule I
substance."). These cases, brought by defendants prosecuted for
criminal violations, do not address problems caused by the
Schedule I classification experienced by lawful medical
marijuana users.
9
  Our dissenting colleague notes that the language we rely on in
Tate is dicta and suggests that is "not germane to that
holding." Post at 21. Even though Justice Clifford's statement
that the Commissioner of Health has authority to reschedule
marijuana may not have been "essential to the disposition of the
case," it is nevertheless authoritative as "it is expressly
declared by the court as a guide for future conduct" and must be
considered a "binding decision[] of the court." State v. Rose,
206 N.J. 141, 182-83 (2011) (quoting 21 C.J.S. Courts §230
(2006) and 5 Am. Jur. 2d Appellate Review § 564 (2007).



                               15                        A-3324-14T4
[CDSA]." Post at 1.   To be clear, our opinion does not mandate

reclassification, we simply hold that the Director erred in

determining he lacked authority to reclassify.    We note that     if

the Director decides to remove marijuana from Schedule I, that

would not decriminalize it, as possession or sale of substances

under other schedules are illegal.   See, e.g., N.J.S.A. 2C:35-5

(13) (Schedule I, II, III, IV substances); N.J.S.A. 2C:35-5 (14)

(Schedule V substance).

    N.J.S.A. 24:21-3(c) provides:

              If    any    substance     is    designated,
         rescheduled or deleted as a controlled
         dangerous substance under federal law and
         notice thereof is given to the director, the
         director    shall     similarly     control   the
         substance under P.L.1970, c.226, as amended
         and supplemented, after the expiration of 30
         days   from    publication    in    the   Federal
         Register of a final order designating a
         substance     as    a    controlled     dangerous
         substance or rescheduling or deleting a
         substance, unless within that 30-day period,
         the    director     objects      to    inclusion,
         rescheduling, or deletion.        In that case,
         the director shall cause to be published in
         the New Jersey Register and made public the
         reasons for his objection and shall afford
         all interested parties an opportunity to be
         heard. At the conclusion of any such
         hearing, the director shall publish and make
         public his decision, which shall be final
         unless    the    substance    is     specifically
         otherwise dealt with by an act of the
         Legislature. Upon publication of objection
         to inclusion or rescheduling under P.L.1970,
         c.226 (C.24:21-1 et seq.) by the director,
         control of such substance under this section
         shall automatically be stayed until such



                                16                           A-3324-14T4
         time as the director makes public his final
         decision.

              The director may by regulation exclude
         any nonnarcotic substance from a schedule if
         such substance may, under the provisions of
         federal or State law, be lawfully sold over
         the counter without a prescription, unless
         otherwise controlled pursuant to rules and
         regulations promulgated by the division.

    The dissent argues that any such action by the Director is

precluded because the objection "must be made within the thirty-

day period following publication; there is no authority granted

to the Director to object thereafter." Post at 11.   However, 21

U.S.C.A. 812(a), requires that the five schedules of controlled

substances "shall be updated and republished on a semiannual

basis during the two-year period beginning one year after the

date of enactment of this title [enacted Oct. 27, 1970] and

shall be updated and republished on an annual basis thereafter."

N.J.S.A. 24:21-3(d) provides that the "director shall update and

republish the schedules in sections 5 through 8.1 of P.L.1970,

c.226, as amended and supplemented . . . periodically."   At a

minimum, the thirty-day window permitting the Director to object

to a schedule classification, will reoccur on an annual basis.

    Our dissenting colleague cites no authority to support her

conclusion that the Director may only object to "a new decision

made regarding the federal schedules" and "is not authorized to

revisit established federal schedules and differ with the



                               17                           A-3324-14T4
designations already made." Post at 11.     If the Legislature had

intended to place such limitations on the Director's review, it

surely could have done so in the statute.    Moreover, a review of

classification by the Director based, not on changes to the

federal schedule, but on "scientific developments and advances

in knowledge [which] could ultimately render marijuana's

Schedule I classification inappropriate" is exactly what the

Tate Court anticipated. Tate, supra, 102 N.J. at 71.

    Finally, we reject our dissenting colleague's conclusion

that "[b]ecause [N.J.S.A. 24:21-3(a)] applies to the Director's

decision '[i]n determining whether to control a substance,'

(emphasis in dissent), it presupposes the substance in question

is not controlled at the time of the determination, that it is

not listed on any federal schedule and that the Director is

making an initial determination to control it or not."    This

finding is unsupported by any authority and is contradicted by

N.J.S.A. 24:21-3(a) which clearly states "The director may add

substances to or delete or reschedule all substances enumerated

in the schedules in [N.J.S.A. 24:21-5 through N.J.S.A. 24:21-

8.1]." (Emphasis added).   The original bill incorporated a large

list of substances pre-scheduled upon enactment, including

"Marihuana."   The Director is authorized to add, delete, or

reschedule all substances enumerated, and is not limited to




                                18                          A-3324-14T4
substances "not controlled at the time of the determination" as

our colleague suggests.

    This matter is remanded to the Director for proceedings

consistent with our opinion.   We do not retain jurisdiction.




                                19                        A-3324-14T4
________________________________

ESPINOSA, J.A.D., dissenting.

    The question presented by this appeal is whether, as a

result of evolving attitudes about marijuana and its potential

for medical uses, the Director of the Division of Consumer

Affairs was required to reschedule marijuana, removing it from

Schedule I of the New Jersey Controlled Dangerous Substances Act

(CDSA), N.J.S.A. 24:21-1 to -56.   The Director's decision that

he was required, instead, to control marijuana in accord with

federal schedules is subject to limited appellate review.

Circus Liquors, Inc. v. Governing Body of Middletown, 199 N.J.

1, 9 (2009). In light of the unambiguous language of N.J.S.A.

24:21-3(c) that the Director adhere to federal schedules, his

decision must be sustained because there is no "'clear showing'

that it is arbitrary, capricious, or unreasonable or that it

lacks fair support in the record." Ibid.

    My colleagues conclude the Director erred in his

interpretation of the law but do not conclude the Director's

decision was arbitrary, capricious or unreasonable or consider

that a fair interpretation of the governing statute provides

support for his decision.   They have elected to decide an issue

they acknowledge "is not squarely before us."   Despite the clear

directive in N.J.S.A. 24:21-3(c), the majority concludes the
Director may reconsider the classification of marijuana, placing

it on a schedule different from its designation on the federal

schedules and, because the issue is "ripe for determination" by

the Director, remands the issue for his consideration.

     The necessary premise for this conclusion is that the

Director has the discretion to make a major policy decision

regarding the scheduling of marijuana that directly conflicts

with the legislative mandate contained in N.J.S.A. 24:21-3(c)

and federal law.   That premise cannot withstand the application

of established principles of statutory construction.

     First of all, the plain language of N.J.S.A. 24:21-3(c)

requires that the schedules established by the Director be the

same as the federal schedules.   The legislative scheme provided

by the CDSA reflects that N.J.S.A. 24:21-3(c) is but one

expression of the Legislature's recognition of the primacy of

federal regulation in this area.1    See State v. Metcalf, 168 N.J.




1
  N.J.S.A. 26:2L-6(a) explicitly makes the Controlled Dangerous
Substances Therapeutic Research Act (TRA), N.J.S.A. 26:2L-1 to -
9 subject to federal law. ("The commissioner shall enter into an
agreement with the National Institute on Drug Abuse for receipt
of a Schedule I controlled dangerous substance for the purposes
prescribed in this act, subject to the provisions of all Federal
controlled dangerous substances laws and rules adopted pursuant
to such laws." (Emphasis added)). See also N.J.S.A. 26:2L-7;
N.J.S.A. 26:2L-8; N.J.S.A. 26:2L-9 and N.J.A.C. 13:45H-10.1,
which incorporates the federal controlled dangerous substance
schedules by reference, N.J.A.C. 13:45H-10.1(a) and identifies
                                                      (continued)


                                 2                         A-3324-14T4
Super. 375, 378 (App. Div.) (observing the CDSA "is modeled, and

is largely dependent, on the corresponding federal regulatory

provisions"), certif. denied, 81 N.J. 411 (1979).     A review of

extrinsic evidence similarly establishes the mandatory nature of

N.J.S.A. 24:21-3(c).    Finally, although the Director's decision

is properly affirmed based upon the statute's language and the

Legislature's intent, any decision to schedule marijuana

differently from the federal schedule is preempted by the

federal Controlled Substances Act (CSA), 21 U.S.C.A. § 801 to §

904, pursuant to the Supremacy Clause of the United States

Constitution, U.S. Const. art. VI, cl. 2.    For these reasons, I

respectfully dissent.

    The majority has reviewed the personal circumstances of the

amicus and cited some reference materials to suggest that the

reclassification of marijuana would be a worthy and

compassionate change in the law whose time has come.    Intending

no disrespect to the sincerely held beliefs of persons who

advocate for that outcome, that is not our call to make and, to

provide a broader context for the issue at hand, it should be

recognized that the consequences of removing marijuana from

Schedule I are not trivial.


(continued)
any reference to controlled dangerous substance schedules in the
regulations as the federal schedules, N.J.A.C. 13:45H-10.1(b).



                                 3                          A-3324-14T4
     Because the drug kingpin statute, N.J.S.A. 2C:35-3 applies

only to "any controlled dangerous substance classified in

Schedule I or II," it is possible that the offense for which the

appellant was convicted would no longer exist.2   See also

N.J.S.A. 2C:35-9 (establishing a first-degree offense and

imposing strict liability for a drug-induced death caused by a

controlled dangerous substance classified in Schedules I or II).

     Perhaps the greatest irony that would result from the

suggested reclassification of marijuana lies in the impact it

would have upon the Controlled Dangerous Substances Therapeutic

Research Act (TRA), N.J.S.A. 26:2L-1 to -9.   The TRA was

intended to support research that is generally understood to

assess the use of marijuana for medical purposes.   The TRA does

not, however, mention marijuana or marihuana by name.   Instead,

the Legislature's stated purpose in enacting the TRA was to

support research regarding the "use of certain Schedule I

controlled dangerous substances [to] alleviate the nausea and


2
  I do not suggest that the reclassification of marijuana would
have any impact on Kadonsky's conviction. An alteration in its
classification would have no effect because marijuana was on
Schedule I at the time of his offense.   See United States v.
Springer, 354 F.3d 772, 775 (8th Cir.) cert. denied, 542 U.S.
914, 124 S. Ct. 2866, 159 L. Ed. 2d 285 (2004); United States v
Jones 480 F.2d 954, 960 (5th Cir.), cert. denied, 414 U.S. 1071,
94 S. Ct. 582, 38 L. Ed. 2d 476, (1973).




                                4                            A-3324-14T4
ill-effects of certain medical treatment, such as cancer

chemotherapy, and, additionally, [to] alleviate the ill-effects

of certain diseases, such as glaucoma."    N.J.S.A. 26:2L-2.

Therefore, if, upon remand, the Director elected to remove

marijuana from Schedule I, the research program established by

the TRA to evaluate therapeutic uses of marijuana would be

eviscerated.

                                 I.

    "Courts should not reach a constitutional question unless

its resolution is imperative to the disposition of litigation."

Randolph Town Ctr., L.P. v. County of Morris, 186 N.J. 78, 80

(2006).    Although the application of principles of statutory

interpretation adequately resolves the issue before us, a brief

discussion of the potential federal preemption issue provides

useful context for the analysis of N.J.S.A. 24:21-3 that

follows.

    The CSA established "a closed regulatory system making it

unlawful to manufacture, distribute, dispense, or possess any

controlled substance except in a manner authorized by the CSA."

Gonzales v. Raich, 545 U.S. 1, 13, 125 S. Ct. 2195, 2203, 162 L.

Ed. 2d 1, 16 (2005) (citing 21 U.S.C.A. §§ 841(a)(1), 844(a).

"By classifying marijuana as a Schedule I drug," Congress made

"the manufacture, distribution, or possession of marijuana . . .




                                 5                         A-3324-14T4
a criminal offense, with the sole exception being use of the

drug as part of a Food and Drug Administration pre-approved

research study."   Id. at 14, 125 S. Ct. at 2204, 162 L. Ed. 2d

at 17.   The research program established by the TRA is

correspondingly "limited to therapeutic research programs

presently conducted by the Bureau of Drugs in the Food and Drug

Administration of the U.S. Department of Health and Human

Services or its successor." N.J.S.A. 26:2L-4(a).

    21 U.S.C.A. § 903 defines the scope of the CSA's

preemption, limiting it to circumstances where "there is a

positive conflict between" a provision of Title 21 and a state

law "so that the two cannot consistently stand together."      Ibid.

"Such a conflict can arise when it is impossible to comply with

both federal and state requirements or when state law stands as

an obstacle to the accomplishment and execution of the full

purposes and objectives of Congress."     Beek v. City of Wyo., 846

N.W. 2d 531, 537 (2014) (citation omitted).    When, however, it

is possible to comply with both the CSA's prohibition of

marijuana and a state statute that provides limited state-law

immunity for medical marijuana use, there is no "positive

conflict" that triggers preemption.     Id. at 537-38.   In enacting

the New Jersey Compassionate Use Medical Marijuana Act (CUMMA),

N.J.S.A. 24:6I-1 to -16, the Legislature expressed its intent to




                                6                            A-3324-14T4
steer clear of such a conflict, declaring that "compliance with

this act does not put the State of New Jersey in violation of

federal law."   N.J.S.A. 24:6I-2(d).

     An interpretation of N.J.S.A. 24:21-3 as granting the

Director the discretion to remove marijuana from Schedule I

would permit the assertion of regulatory authority untethered to

the limited immunity from state prosecution for medical uses of

marijuana.3   Plainly, if marijuana is deleted from Schedule I,

that provision of the CDSA "cannot consistently stand" with the

CSA's continued prohibition of marijuana and inclusion of

marijuana on the federal Schedule I.   Because such action would

conflict with the "closed regulatory system" established by the

CSA, it would run afoul of the purpose Congress expressed in 21

U.S.C.A. 903 and be preempted by federal law.

                                II.

     Our "fundamental objective . . . is to identify and promote

the Legislature's intent," Parsons ex rel. Parsons v. Mullica

Twp. Bd. of Educ., 226 N.J. 297, 307 (2016). The appropriate

starting place for determining the meaning of N.J.S.A. 24:21-3

is its plain language.   State v. Gandhi, 201 N.J. 161, 176


3
  "Marijuana remains illegal under federal law, even in those
states in which medical marijuana has been legalized." United
States v. Canori, 737 F.3d 181, 184 (2d Cir. 2013) (citing 21
U.S.C.A. § 903).



                                 7                          A-3324-14T4
(2010).   "If the statutory language is clear and unambiguous,

and susceptible to only one interpretation, courts should apply

the statute as written without resort to extrinsic interpretive

aids."    In re Passaic Cty. Utils. Auth., 164 N.J. 270, 299

(2000).

    The Director's authority to administer the provisions of

the CDSA is governed by N.J.S.A. 24:21-3.     N.J.S.A. 24:21-3(c)

states, in pertinent part,

           If any substance is designated, rescheduled
           or deleted as a controlled dangerous
           substance under federal law . . . the
           director shall similarly control the
           substance under [the CDSA].

           [(Emphasis added).]

    The command to "similarly control" any substance scheduled

under federal law is clear and unambiguous.    However, the

majority found that a conflict exists between this section,

which states what the director "shall" do and N.J.S.A. 24:21-

3(a), which states what the director "may" do.    In describing

this conflict, the majority states subsection (c) "seemingly

limits the Director's ability to reclassify controlled dangerous

substances differently than they are classified under federal

law." (Emphasis added).   This mischaracterization of the

statute's plain language opens the door to an elevated

interpretation of subsection (a) that ignores the consequences




                                 8                            A-3324-14T4
of the Legislature's use of "shall" and "may" in the two

subsections.

    "Under the 'plain meaning' rule of statutory construction,

the word 'may' ordinarily is permissive and the word 'shall'

generally is mandatory."     Aponte-Correa v. Allstate Ins. Co.,

162 N.J. 318, 325 (2000).     Therefore, when "a statutory

provision contains both the words 'may' and 'shall,' it is

presumed that the lawmaker intended to distinguish between them,

'shall' being construed as mandatory and 'may' as permissive."

Ibid.; see also Diodato v. Camden Cty. Park Comm'n, 136 N.J.

Super. 324, 327 (App. Div. 1975) ("Whenever the word 'shall'

appears in a statute, it creates a presumption that what is thus

commanded must be done.").     Clearly, then, the plain language of

this subsection commands the Director to schedule controlled

dangerous substances in conformity with federal schedules.

There is no countervailing command in any of the other

subsections of N.J.S.A. 24:21-3.

    N.J.S.A. 24:21-3(a) states, in pertinent part: "The

director may add substances to or delete or reschedule all

substances enumerated in the schedules in [N.J.S.A. 24:21-5

through N.J.S.A. 24:21-8.1].     In determining whether to control

a substance, the director shall consider" certain enumerated

factors. (Emphasis added).     There is nothing in subsection (a),




                                  9                          A-3324-14T4
however, that absolves the Director of the obligation contained

in subsection (c) to control marijuana in the same manner as it

is controlled under federal law.4

      The only opening in N.J.S.A. 24:21-3 for the Director to

disagree with federal designations is found in subsection (c),5

which affords the Director a limited opportunity to object to

the scheduling of a controlled dangerous substance.              The scope

of   this   authority   to   object   is   best   understood   when     viewed

within context:

            If any substance is designated, rescheduled
            or deleted as a controlled dangerous
            substance under federal law and notice
            thereof is given to the Director, the
            Director shall similarly control the
            substance under [the CDSA], as amended and

4
  The revisions to N.J.S.A. 24:21-3 prior to its enactment also
evince a legislative intent to grant only a limited authority to
the Director under subsection (a). See Parsons, supra, 226 N.J.
at 308 (noting legislative history may provide guidance in
statutory interpretation). The Senate bill provided, "The
commissioner shall administer the provisions of this act and
shall control all substances enumerated in sections 5 through 8
of this act." (Emphasis added). The language thus included both
the command, "shall," and an unlimited scope of control, over
"all substances." Senate Bill No. 851, 194th Legislature (May
7, 1970). The final text of the bill removed "shall,"
substituted the permissive "may," and defined a more limited
scope of authority: "The commissioner shall administer the
provisions of this act and may add substances to or delete or
reschedule all substances enumerated in the schedules in
sections 5 through 8 of this act."   In contrast, the command,
"shall," is present in subsection (c) of both the Senate bill
and the law as enacted. L. 1970, c. 226.
5
  Subsection (b), which addresses the designation of precursors,
is not relevant to this discussion.



                                      10                              A-3324-14T4
         supplemented, after the expiration of 30
         days from publication in the Federal
         Register of a final order designating a
         substance as a controlled dangerous
         substance or rescheduling or deleting a
         substance, unless within that 30-day period,
         the director objects to inclusion,
         rescheduling, or deletion. In that case,
         the director shall cause to be published in
         the New Jersey Register and made public the
         reasons for his objection and shall afford
         all interested parties an opportunity to be
         heard. At the conclusion of any such
         hearing, the director shall publish and make
         public his decision, which shall be final
         unless the substance is specifically
         otherwise dealt with by an act of the
         Legislature. Upon publication of objection
         to inclusion or rescheduling under
         ([N.J.S.A.] 24:21-1 et seq.) by the
         director, control of such substance under
         this section shall automatically be stayed
         until such time as the director makes public
         his final decision.

         The director may by regulation exclude any
         nonnarcotic substance from a schedule if
         such substance may, under the provisions of
         federal or State law, be lawfully sold over
         the counter without a prescription, unless
         otherwise controlled pursuant to rules and
         regulations promulgated by the division.

         [N.J.S.A. 24:21-3(c) (emphasis added).]

    The authorization to "object" is therefore limited both as

to the time in which the objection may be made and as to the

federal action to which the Director may object.   The objection




                               11                         A-3324-14T4
must be made within the thirty-day period following publication;6

there is no authority granted to the Director to object

thereafter.   The authority granted is to object to "a final

order designating a substance as a controlled dangerous

substance or rescheduling or deleting a substance."     Ibid.

(Emphasis added).   The objection authorized is therefore to

respond to a new decision made regarding the federal schedules.

The Director is not authorized to revisit established federal

schedules and differ with the designations already made.    Such a

grant of authority would inexplicably conflict with the command

in this very subsection that the Director "similarly control"

any substance under the CDSA "[i]f [the] substance is

designated, rescheduled or deleted as a controlled dangerous

substance under federal law."   Ibid.

     When construing a statute, "'the intention of the

Legislature is to be derived from a view of the entire statute'

and all provisions 'must be read together in light of the

general intent of the act.'"    Perez v. Zagami, LLC, 218 N.J.

202, 211 (2014) (quoting Hubner v. Spring Valley Equestrian


6
  Because N.J.S.A. 24:21-3(d) requires the Director to "update
and republish the schedules in [the CDSA] periodically," the
majority posits that the thirty-day window for objection by the
Director will recur annually. However, that subsection fails to
vest the Director with any authority to depart from the federal
schedules.



                                 12                         A-3324-14T4
Ctr., 203 N.J. 184, 195 (2010)).      "We presume that the

Legislature created subsections [of a statute] as a cohesive

whole.   That presumption cautions against an asserted plain

language reading of [one subsection] that appears at odds with

related phraseology in its sister subsection[]."      Ibid.

    In my view, an interpretation of N.J.S.A. 24:21-3 that

permits the Director to revisit schedules established by federal

regulation and schedule any controlled substance differently

would yield the type of absurd result that must be avoided.

Perez, supra, 218 N.J. at 214.     Any perceived ambiguity is

dispelled by a close reading of the subsections, guided by the

principle that the statute must be read "together as a whole,

giving meaning to each of its parts, harmonizing" the

subsections to effect the Legislature's intent.      Wilson ex rel.

Manzano v. City of Jersey City, 209 N.J. 558, 586-87 (2012);

Hubner, supra, 203 N.J. at 194-95; Brown v. Brown, 86 N.J. 565,

577 (1981) ("Each subsection should be read with respect to the

subject matter of the others and in harmony with each other and

with the whole.").

    As noted, N.J.S.A. 24:21-3(c) commands the Director to

"similarly control" any substance in accord with federal

schedules.   Because subsection (a) applies to the Director's

decision "[i]n determining whether to control a substance,"




                                 13                           A-3324-14T4
(emphasis added), it presupposes the substance in question is

not controlled at the time of the determination, that it is not

listed on any federal schedule and that the Director is making

an initial determination to control it or not.   Similarly, when

the opportunity to object to federal action included in

subsection (c) is scrutinized, it is reasonably interpreted to

be consistent with the directive that the Director follow

federal schedules in scheduling a substance under the CDSA.

     The plain language of the statute, viewed in light of

established principles of statutory construction, therefore

compels the conclusion the Director's decision that he lacks the

authority to depart from federal schedules to remove marijuana

from Schedule I was not arbitrary, capricious or unreasonable.

                              III.

     If, however, I accept the majority's premise that differing

interpretations are possible, a review of extrinsic evidence7

does not support a contrary conclusion.


7
  If statutory provisions are susceptible to more than one
interpretation, extrinsic evidence, such as "legislative history
and committee reports," may inform our analysis. Parsons,
supra, 226 N.J. at 308 (quoting State v. Marquez, 202 N.J. 485,
500 (2010)); Wilson, supra, 209 N.J. at 572. Extrinsic evidence
is also properly considered "if a literal reading of the statute
would yield an absurd result, particularly one at odds with the
overall statutory scheme." Ibid.; DiProspero v. Penn, 183 N.J.
477, 493 (2005); see, e.g., Perez, supra, 218 N.J. at 214-16.




                               14                           A-3324-14T4
                                  A.

      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 non-medical uses.       That distinction would cease to

exist if the Director were permitted to remove marijuana from

Schedule I.

      Since its inception, the CDSA has listed "Marihuana" in

Schedule I, N.J.S.A. 24:21-5(e)(10).           This is consistent with

the   scheduling   of   "marihuana"    in    the   federal   statute,   21

U.S.C.A. § 812(c), Schedule I(c)(10), and federal regulations,

21 C.F.R. § 1308.11(d)(23) (2017).          The CDSA became effective in

January 1971, L. 1970, c. 226, and I agree with the majority

that it is quite likely the Legislature did not anticipate a

medicinal use for marijuana when it was enacted.

      Just eleven years after marijuana was listed on Schedule I,

our Legislature did contemplate such use when it enacted the TRA

and stated its findings:

          [M]edical research has shown that the
          therapeutic use of certain Schedule I
          controlled dangerous substances may
          alleviate the nausea and ill-effects of
          certain medical treatment, such as cancer
          chemotherapy, and, additionally, may
          alleviate the ill-effects of certain
          diseases, such as glaucoma. The Legislature
          further recognizes that there is a need for
          further therapeutic research with regard to



                                  15                             A-3324-14T4
           the use of such controlled dangerous
           substances for these purposes under strictly
           controlled circumstances.

           [N.J.S.A. 26:2L-2 (emphasis added).]

    Despite       the   possibility     of     therapeutic      uses,    marijuana

remained   a     Schedule    I    controlled    dangerous    substance.          The

Supreme Court noted the Legislature had "weighed the competing

value of medical use of marijuana against the values served by

prohibition      of   its   use   or   possession,"      defined    "the    narrow

circumstances under which" the value of medical use "may be

served,"   and     determined     marijuana    continued     to   be    prohibited

"[o]utside those narrow circumstances."                State v. Tate, 102 N.J.

64, 74 (1986).

    In     2009,      the   Legislature      enacted    CUMMA     and   made     the

following declaration of its findings:

                a. Modern medical research has
           discovered a beneficial use for marijuana in
           treating or alleviating the pain or other
           symptoms associated with certain
           debilitating medical conditions, as found by
           the National Academy of Sciences' Institute
           of Medicine in March 1999;

                b. [C]hanging state law will have the
           practical effect of protecting from arrest
           the vast majority of seriously ill people
           who have a medical need to use marijuana;

                c. Although federal law currently
           prohibits the use of marijuana, the laws of
           [thirteen states] permit the use of
           marijuana for medical purposes . . . . New




                                        16                                 A-3324-14T4
           Jersey joins this effort for the health and
           welfare of its citizens;

                d. States are not required to enforce
           federal law or prosecute people for engaging
           in activities prohibited by federal law;
           therefore, compliance with this act does not
           put the State of New Jersey in violation of
           federal law; and

                e. Compassion dictates that a
           distinction be made between medical and non-
           medical uses of marijuana. Hence, the
           purpose of this act is to protect from
           arrest, prosecution, property forfeiture,
           and criminal and other penalties, those
           patients who use marijuana to alleviate
           suffering from debilitating medical
           conditions, as well as their physicians,
           primary caregivers, and those who are
           authorized to produce marijuana for medical
           purposes.

           [N.J.S.A. 24:6I-2 (emphasis added).]

    The Legislature thus advanced from recognizing the possible

therapeutic    use     of   marijuana     in   the   TRA   to    a   more     concrete

finding,     that     "[m]odern    medical      research    has        discovered      a

beneficial      use        for    marijuana."          N.J.S.A.          24:6I-2(a).

Significantly,       the    Legislature      acknowledged       that    the    use   of

marijuana remained prohibited by federal law, N.J.S.A. 24:6I-

2(c), and made no effort to repeal the statutory mandate that

handcuffed    the     Director's     scheduling       of    substances        to     the




                                        17                                    A-3324-14T4
federal schedules.8        Instead, the Legislature built upon the

narrow    exception     permitted   for      medical     uses    of    marijuana,

stating CUMMA was intended to draw "a distinction . . . between

medical and non-medical uses of marijuana."                     N.J.S.A. 24:6I-

2(e).     Moreover, the Legislature expressed no intent to treat

marijuana in the same way for all persons.

     We   cited   this    distinction       in   State   v.   Myers,    442    N.J.

Super.    287   (App.    Div.   2015),   certif.     denied,     224    N.J.   123

(2016), in rejecting the argument that CUMMA mandated a change

in existing law.9       We observed:

            [T]he Legislature intended that "a
            distinction be made between medical and non-
            medical uses of marijuana." N.J.S.A. 24:6I-
            2(e). The Legislature stated that "the
            purpose of this act is to protect from
            arrest, prosecution, property forfeiture,
            and criminal and other penalties, those
            patients who use marijuana to alleviate
            suffering from debilitating medical
            conditions[.]"

            [Id. at 298 (alteration in original).]

8
  Although CUMMA does not mention the CDSA or, specifically, the
sections applicable to the scheduling of marijuana, we may
presume the Legislature is "familiar with its own enactments"
and intended that CUMMA be construed to serve a purpose that is
"useful and consistent" with its other enactments. In re
Trenton Ordinance 09-02, 201 N.J. 349, 359 (2010) (quoting State
v. Federanko, 26 N.J. 119, 129 (1958)).
9
  The defendant argued that, because "possession of marijuana
[was] no longer illegal in all instances, . . . the 'plain
smell' doctrine [applied in search and seizure cases] no longer
applie[d]." Id. at 295.



                                       18                                A-3324-14T4
     The Legislature retained the criminal penalties for non-

medical uses of marijuana prohibited by N.J.S.A. 2C:35-5(a)(10)-

(12) and marijuana remained a Schedule I controlled dangerous

substance.     Id. at 298 n.7 (quoting State v. Wilson, 421 N.J.

Super. 301, 310 n.4 (App. Div. 2011), certif. denied, 209 N.J.

98 (2012)).

     In 2015, the Legislature enacted N.J.S.A. 18A:40-12.22(a),

directing boards of education and the chief administrators of

nonpublic schools to "develop a policy authorizing parents . . .

to   administer    medical     marijuana    to       a     student"      on    school

property.      N.J.S.A.   18A:40-12.2.         The       statute    preserved       the

distinction drawn by the Legislature between medical and non-

medical   uses    of   marijuana   by   requiring         that     the   policy      be

limited to students and parents authorized to engage in the

medical use of marijuana pursuant to CUMMA.                  See Assemb. Budget

Comm. Statement to A. 4587 (June 23, 2015) ("The bill provides

that conduct authorized under its provisions falls within the

provisions of N.J.S.[A.] 2C:35-18 and [N.J.S.A. 24:6I-6] that

provide     immunity    from   civil     and     criminal          liability        and

professional      disciplinary     action      for        persons        acting      in

accordance with [CUMMA].")




                                    19                                        A-3324-14T4
      The Director's removal of marijuana from Schedule I would

effectively       override   the   Legislature's          expressed      intent,       a

result that militates against the majority's interpretation.

                                      B.

      Another source of extrinsic material to aid in statutory

interpretation is an agency's interpretation.                  Although "we are

'in no way bound by an agency's interpretation of a statute or

its determination of a strictly legal issue,'"                    Russo v. Bd. of

Trs.,    Police    &   Firemen's   Ret.   Sys.,     206    N.J.    14,   27     (2011)

(citation omitted), we defer to agency "expertise and knowledge

in their particular fields."          Caminiti v. Bd. of Trs., Police &

Firemen's Ret. Sys., 431 N.J. Super. 1, 14 (App. Div. 2013).

Because the Director is charged with administering the CDSA, his

interpretation of the statute is entitled to "great deference."

In re N.J.A.C. 7:1B-1.1 et seq., 431 N.J. Super. 100, 114-15

(App.    Div.     2013)   (quoting    N.J.       Ass'n    of   Sch.      Adm'rs      v.

Schundler, 211 N.J. 535, 549 (2012)). "If there is any fair

argument in support of the course taken by the agency or any

reasonable ground for difference of opinion among intelligent

and     conscientious     officials,"      the     decision       should      not    be

disturbed. Lisowski v. Borough of Avalon, 442 N.J. Super. 304,

330 (App. Div. 2015) (quoting Newark v. Natural Res. Council,

Dep't of Envtl. Prot., 82 N.J. 530, 539 (1980)).




                                      20                                      A-3324-14T4
       In denying plaintiff's request to reschedule marijuana, the

Director noted the authority granted by N.J.S.A. 24:21-3(a) is

permissive rather than mandatory.      He identified N.J.S.A. 24:21-

3(c)    as   providing   the   applicable   mandate    regarding         the

scheduling   of   marijuana.   Because   marijuana    continues     to   be

listed as a Schedule I substance on the federal schedule,10 the

Director observed, "the language of the statute requires that

the substance remain scheduled consistent with federal law."

       The Director also addressed and rejected the argument that

CUMMA mandates a different result.11     He found no expression of

legislative intent "to treat marijuana similar to or consistent

with substances listed in Schedules II-V."     He noted further the

dual expressions of legislative intent "[i]nherent in the

statutory scheme" that we have recognized: that marijuana not be

considered "legal" for all purposes and that CUMMA was intended

10
   The Drug Enforcement Administration recently denied a
petition that sought to initiate proceedings to reschedule
marijuana. 81 Fed. Reg. 53,688 (Aug. 12, 2016) (to be codified
at 21 C.F.R. pt. 1301).
11
  Both the Department of Health and the Board of Medical
Examiners concurred that CUMMA did not either reschedule or
permit the rescheduling of marijuana. In commenting on a
regulation promulgated under CUMMA, the Board of Medical
Examiners stated the Legislature "did not reschedule marijuana."
43 N.J.R. 3191(b), 3192 response to comment 2 (Dec. 5, 2011).
Similarly, the Department of Health determined a change in
existing federal law would be necessary for a change in the
classification of marijuana under New Jersey law. 43 N.J.R.
3335(a), 3340 response to comment 24 (Dec. 19, 2011).



                                  21                              A-3324-14T4
to prevent the criminal prosecution of patients, their

caregivers and physicians for the medical use of marijuana

consistent with the law.           Myers, supra, 442 N.J. Super. at 298.

       The Director's interpretation is supported by the plain

language of the statute, expressions of legislative intent and

our own review of legislative action.                  His view was therefore

entitled to deference.         In sum, a review of pertinent extrinsic

evidence fails to support the conclusion that subsection (a)

authorizes the Director to reschedule a controlled substance in

a manner that is inconsistent with the federal schedule.

                                           IV.

       Finally, I am unpersuaded by the majority's reliance upon

dicta in Tate as providing support for its interpretation.

       In   Tate,   supra,    102    N.J.       at    73,    the   Court   rejected      a

defendant's argument that, as a result of the TRA, the defense

of necessity was available to a defendant who did not obtain a

valid prescription for marijuana.                    In a comment not germane to

that   holding,     the    Court    observed         that,   by    enacting    N.J.S.A.

24:21-3(a), the Legislature left room for the possibility that

marijuana    could    be    rescheduled         with   "consideration         to,   inter

alia, current scientific knowledge."                   Id. at 71.      The Court did

not mention the federal schedules or subsection (c) at all in

its    opinion,     let    alone    rule    that       the    permissive      authority




                                           22                                   A-3324-14T4
granted by N.J.S.A. 24:21-3(a) took precedence over the mandate

in N.J.S.A. 24:21-3(c) that substances be scheduled consistent

with federal law.

    "[A]s an intermediate appellate court, we are bound by the

holdings of our Supreme Court where it has spoken clearly on a

subject."     Moscatello ex rel. Moscatello v. Univ. of Med. and

Dentistry of N.J., 342 N.J. Super. 351, 363-64 (App. Div.),

certif.     denied,    170    N.J.    207    (2001).    As    the       majority

acknowledges, the language relied upon is dicta, not a holding.

Moreover, Tate was decided before the passage of CUMMA, in which

the Legislature preserved the distinction between medical and

non-medical     uses    for    marijuana.        Therefore,       the   Court's

observation    does    not    offer   such   clarity   on   the    subject     to

require the result adopted by the majority.

    For these reasons, I would affirm the Director's decision.




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