                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-2266-12T3




RICHARD CAPORUSSO and JILL
CAPORUSSO, CAROLINE GLOCK and         APPROVED FOR PUBLICATION
OTHERS SIMILARLY SITUATED;
JEFFREY S. POLLACK, M.D.,                January 13, 2014

                                         APPELLATE DIVISION
      Plaintiffs-Appellants,

v.

NEW JERSEY DEPARTMENT OF HEALTH
AND SENIOR SERVICES,

      Defendant-Respondent,

and

MARY E. O'DOWD, MPH, OR
SUCCESSOR COMMISSIONER OF
THE NEW JERSEY DEPARTMENT OF
HEALTH AND SENIOR SERVICES;
JOHN H. O'BRIEN, JR., OR
SUCCESSOR DIRECTOR OF THE
NEW JERSEY COMPASSIONATE USE
MEDICAL MARIJUANA PROGRAM,

     Defendants.
_______________________________

          Argued September 18, 2013 - Decided January 13, 2014

          Before Judges Lihotz, Maven and Hoffman.

          On appeal from the Superior Court of New
          Jersey, Law Division, Mercer County, Docket
          No. L-822-12.
          Anne M. Davis and William H. Buckman argued
          the cause for appellants.

          Michael J. Kennedy, Deputy Attorney General,
          argued the cause for respondent (John J.
          Hoffman, Acting Attorney General, attorney;
          Melissa H. Raksa, Assistant Attorney General,
          of counsel; Mr. Kennedy, on the brief).

     The opinion of the court was delivered by

LIHOTZ, J.A.D.

     Plaintiffs     Richard     Caporusso,    Jill       Caporusso,    Caroline

Glock and Jeffrey S. Pollack, M.D., filed this action against

defendants,   the   New    Jersey   Department      of    Health     and    Senior

Services, which is now known as the Department of Health (DOH);1

Mary E. O'Dowd, MPH, DOH's Commissioner (Commissioner); and John

H. O'Brien, Jr., the Director of the Medicinal Marijuana Program

(MMP).2   Plaintiffs seek "injunctive and/or declaratory relief"

to effectuate the New Jersey Compassionate Use Medical Marijuana

Act (the Act), N.J.S.A. 24:6I-1 to -16.              The Act legalizes the

production,   sale,       and   consumption    of        medicinal    marijuana




1
     The Department of Health and Senior Services (DHSS) was
reorganized and renamed the Department of Health (DOH) pursuant
to L. 2012, c. 17, effective June 29, 2012.     We recognize the
Act initially referred to DHSS as the responsible agency and
note this matter was filed after June 29, 2012. Accordingly, we
refer to the agency as DOH throughout our opinion.
2
     In our opinion, we collectively refer to defendants as DOH.




                                     2                                     A-2266-12T3
prescribed   for   specific   patients    diagnosed       with   defined

debilitating medical conditions.

    After    reviewing   plaintiffs'   complaint,   the    trial    judge

concluded the Law Division lacked jurisdiction to consider the

substantive claims and transferred the matter to this court,

pursuant to Rule 2:2-3(a)(2), which provides "appeals may be

taken to the Appellate Division as of right . . . to review

final decisions or actions of any state administrative agency." 3

Rule 2:2-3(a)(2) contemplates a

         proceeding to review the action or inaction
         of a state administrative agency [shall] be
         by appeal to the Appellate Division . . . .
         Therefore,   the   Appellate  Division   has
         exclusive jurisdiction to consider a claim
         of state administrative agency inaction. If
         our determination of such a claim requires
         the development of a factual record, we can
         remand to the agency for a statement of
         reasons, for further action by the agency,
         or can permit the Law Division to create a
         record and make fact-finding.

         [Hosp. Ctr. at Orange v. Guhl, 331 N.J.
         Super.   322,   329-30   (App.   Div. 2000)
         (internal quotation marks and citations
         omitted) (alterations in original).]

    Following our review, we conclude plaintiffs have set forth

a basis to compel the DOH to complete its reporting requirements




3
     The transcript of this proceeding has not been supplied to
this court.



                                  3                              A-2266-12T3
as set forth in the Act.            However, we deny all other requests

for relief.

                                         I.

      The Act was adopted on January 18, 2010 and originally

scheduled to go into effect on July 1, 2010, L. 2009, c. 307,

§ 19.      At DOH's request, the Legislature amended the Act to

delay the effective date to October 1, 2010.                     See L. 2010, c.

36,   §   1.      Stated    legislative       findings       note   that    although

marijuana is included as a controlled dangerous substance, as

defined    in    N.J.S.A.     24:21-2,      "[c]ompassion       dictates     that    a

distinction     be   made   between      medical     and    non-medical     uses    of

marijuana."       N.J.S.A. 24:6I-2(e).              The Act broadly seeks "to

protect from arrest, prosecution, property forfeiture, . . .

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."                       Listing

the specific debilitating medical conditions to which the use of

medicinal      marijuana    is   permitted,     N.J.S.A.       24:6I-3,     the    Act

directs DOH to establish a registry of qualifying patients and

their     caregivers    and      issue    registry         identification    cards.

N.J.S.A.    24:6I-4(a).          Further,     the    Act    proposes   to   license




                                          4                                 A-2266-12T3
alternative treatment centers (ATC) to cultivate and distribute

medicinal marijuana.            N.J.S.A. 24:6I-7.

       The   Act    includes         few    details     for   its    effectuation,        but

rather, authorizes DOH to promulgate a body of regulations in

consultation       with    the       Department       of    Law    and     Public   Safety,

regarding the operation, monitoring, inspection, licensure, and

security      of     permitted             providers;       pickup,        delivery,      and

distribution of marijuana by third parties; the nature of the

products     sold    and       the    quantity      permitted        for    distribution;

provisions allowing registered primary caregivers to handle a

qualifying patient's medical marijuana; and qualifications and

the    registration       of    patients       to   receive       medicinal      marijuana.

N.J.S.A. 24:6I-4, 7(a), 7(b), 7(i), 16(a).

       DOH discharged its rulemaking responsibility by proposing

rules for the MMP on November 15, 2010.                       42 N.J.R. 2668(a) (Nov.

15, 2010).4        The Legislature found the proposed rules, in part,

were    inconsistent       with        the    Act's        intention,      and   passed      a

concurrent          resolution              identifying           provisions        needing

modification.        S. Res. 130, 214th Leg. (N.J. 2010) and Assemb.

Res. 151, 214th Leg (N.J. 2010).                        See also 43 N.J.R. 340(a)

(Feb. 22, 2011).               The concurrent resolution directed                    DOH to


4
     On October 6, 2010, DOH initially posted draft proposed
implementation rules on its website.



                                               5                                    A-2266-12T3
amend or withdraw portions of regulations it identified as non-

conforming,     within    thirty       days.        More   specifically,          the

concurrent resolutions identified as non-conforming the imposed

limitation    on   debilitating        conditions    treatable    by   medicinal

marijuana, the separation of ATC activities for cultivation and

distribution of marijuana, and the limit imposed on the level of

delta-9-tetrahydrocannabinol            (THC)     contained      in    marijuana

products sold.       DOH issued modified rules in February 2011.                    43

N.J.R. 340(a).        A second concurrent resolution, S. Res. 151,

214th Leg (N.J. 2011) was introduced on April 11, 2011, which

reaffirmed those proposed rules found to deviate from the Act's

intent.   The Legislature never adopted that resolution.                    The MMP

regulations were finalized and adopted on November 23, 2011,

effective December 19, 2011.           43 N.J.R. 3335(a) (Dec. 19, 2011),

appear at N.J.A.C. 8:64-1 to -13.11.

    Pending finalization of the rules, DOH published a request

for applications for the first non-profit ATC operators.                          Six

applicants    were   selected     to    operate     proposed   ATCs    that      were

geographically spaced throughout the state, with two ATCs in the

northern, central and southern regions of New Jersey.

    The   Act      includes   a   provision       instructing:        DOH    "shall

report to the Governor, and the Legislature . . . no later than

one year after the effective date of this act, on the actions




                                         6                                  A-2266-12T3
taken to implement the provisions of this act[,]" and annually

thereafter.       N.J.S.A. 24:6I-12(a)(1), (2).                 The Commissioner was

also mandated to report findings regarding the sufficiency of

the number of ATCs and other issues within two years of the

Act's effective date and every two years thereafter.                              N.J.S.A.

24:6I-12(c).

    To     date,     three     ATCs   have       opened:       Greenleaf       Compassion

Center     in     Montclair,    Essex       County,       on        October    16,     2012;

Compassionate Care Foundation in Egg Harbor Township, Atlantic

County,    on     October    28,    2013;       and    Garden        State    Dispensary,

formerly        Compassionate      Care     Centers       of        America,     Inc.    in

Woodbridge,       Middlesex     County,         on    November       22,     2013.5      The

respective websites of the other three chosen ATC applicants

suggest         various      stages       of         progress        toward       opening.

Compassionate       Sciences,      Inc.,        located        in     Bellmawr,       Camden

County, appears to be closest to commencement of operations.6


5
     See   State of N.J., Dep't of Health, Medical Marijuana
Program,   http://www.state.nj.us/health/medicalmarijuana   (last
viewed Dec. 24, 2013) (providing links to news and announcements
regarding medical marijuana program); Scott Gacek, Report: NJ's
Woodbridge Medical Marijuana Dispensary to Open Tomorrow, The
Daily Chronic (Nov. 21, 2013), http://www.thedailychronic.net/
2013/26444/report-njs-woodbridge-medical-marijuana-dispensary-
to-open-tomorrow.
6
     See   Compassionate  Sciences   Building  Advanced   Medical
Marijuana Treatment Facility in Bellmawr, Market Wired (Aug. 29,
2013), http://www.marketwired.com/press-release/compassionate-
                                                      (continued)


                                            7                                     A-2266-12T3
Breakwater Alternative Treatment Center lists its location as

Central New Jersey7 and Harmony Foundation lists an address in

Cliffside     Park,   but   does    not       yet        suggest    it   is   accepting

patients.8

      Plaintiffs' five-count amended complaint conflates requests

for   equitable   and   legal      relief          and    demands    a   jury       trial.9

Plaintiffs Richard Caporusso and Caroline Glock are qualified

patients under the Act, who claim they have been denied access

to medical marijuana because of DOH's failure to implement the

program as mandated.        Plaintiff Jeffrey Pollack, M.D., alleges

he sought to provide written certifications for his patients he

believed suffered qualified debilitating medical conditions and

found   the   requirements    to    do        so    were     burdensome       and    time-

consuming.




(continued)
sciences-building-advanced-medical-marijuana-treatment-facility-
bellmawr-1825731.htm.
7
     See Breakwater Alternative Treatment Center,                         http://www.
breakwateratc.org (last viewed Dec. 17, 2013).
8
     See Harmony Foundation, http://www.harmonyfoundationmmjnj.
com/contactus.aspx (last viewed Dec. 17, 2013).
9
     The original complaint and jury demand were filed on April
4, 2012, but not served.   An amended complaint was filed, with
an order to show cause and counsel's certification, on October
10, 2012.




                                          8                                     A-2266-12T3
      In count one, Caporusso and Glock generally assert they

suffered   a    denial       of    due     process       under     the    New    Jersey

Constitution.10         In    count       two,    plaintiff        Jill    Caporusso,

Richard's wife, asserts derivative claims for loss of services.

Count   three     asserts         DOH's       willful,      intentional,         wanton,

malicious, reckless, or grossly negligent actions, have denied

Caporusso and Glock access to medical marijuana which amounts to

an intentional tort.         Count four alleges DOH negligently failed

to   effectuate   its    duty     to     implement    the    Act    and   count     five

identifies the injunctive relief sought "to see to it that the

will of the [L]egislature is carried out."                       In a single prayer

for claims of relief, plaintiffs seek an order:

           1. Requiring [the Commissioner] to see to it
              that the statute is properly implemented
              and the scheme contained in the [Act]
              . . . is obeyed[;]

           2. Compelling . . . [the] Director of the
              [MMP] to promptly comply with the [Act]
              and the [l]egislative directives in [the
              Act] by:

                  A. Immediately    establishing    a
                     workable program eliminating the
                     unnecessary     and/or    overly
                     burdensome hurdles to physicians
                     willing to prescribe marijuana
                     in accordance with the [Act];




10
     Glock, who suffered               from    lung   cancer,      passed       away   on
October 25, 2012.



                                           9                                    A-2266-12T3
    B. Completing background investiga-
       tions on all six (6) [ATCs']
       entire board members, staff and
       interested     parties    within
       [thirty] days;

    C. Approving or denying each of the
       six (6) selected ATC applicants
       within [thirty] days;

    D. Rejecting     any    disqualified
       applicant and appointing another
       ATC operator in the event that
       an     ATC       applicant     is
       disqualified.

    E. Submitting the complete report
       as mandated by the [Act], on
       their actions taken to implement
       the program to the Governor and
       Legislature   within    [thirty]
       days.

3. Declaring that the [MMP] regulations as
   promulgated by the [DOH] are ultra vires;

4. Declaring that the     MMP regulations as
   promulgated     by      the    DOH     are
   unconstitutional;

5. Appointing   the   Coalition for  Medical
   Marijuana of New Jersey .        . . as
   [m]onitor, to oversee and report to the
   [c]ourt on actions taken by DOH to
   implement the MMP;

6. Compelling  DOH  to    revise   the   MMP
   regulations under consultation and in
   conformity  with   the    recommendations
   drafted by [the Coalition for Medical
   Marijuana of New Jersey] within [sixty]
   days;




                     10                         A-2266-12T3
            7. Providing   [the  Coalition   for   Medical
               Marijuana   of   New  Jersey]    shall   be
               compensated at a reasonable rate out of
               the MMP budget;

            8. Granting qualified and registered patients
               a defense from criminal prosecution that
               they otherwise would have been afforded
               had they possessed an ID card;

            9. Permitting     patients    to   immediately
               petition   the    DOH   to  add  qualifying
               conditions pursuant to the [Act].

Finally, plaintiffs' ad damnum clause seeks "such other relief

as the [c]ourt deems equitable and just[,]" along with demands

for compensable and punitive damages, counsel fees, costs and

pre- and post-judgment interest.               It is noted, certifications

and   plaintiffs'      merits    brief      also     discuss     prior   document

requests, alluding to violations of the Open Public Records Act

(OPRA), N.J.S.A. 47:1A-1 to -13.

      In   lieu   of   filing   an   answer,       DOH   moved   to   dismiss   the

complaint.        The Law Division judge considered the matter on

January 24, 2013.        The judge declined to review the merits of

the various claims, determining jurisdiction rested with this

court, and transferred the case for our review pursuant to Rule

2:2-3(a)(2).

      The complaint is muddled and lacks specificity regarding

several alleged causes of action.                  However, we discern four

types of issues presented:           (1) DOH's inaction in implementing




                                       11                                 A-2266-12T3
identified provisions of the Act requires an order compelling it

to act; (2) due process violations warrant compensatory relief;

(3)     DOH's    inaction     amounts       to      intentional     torts        and/or

negligence       requiring    an    award      of    damages;     and    (4)      DOH's

noncompliance with several OPRA requests must be remedied.

       We easily dispose of the latter two categories of claims.

We    conclude    plaintiffs'      pleadings        are   insufficient      to    allow

consideration       under    the   New    Jersey      Tort     Claims   Act      (TCA),

N.J.S.A. 59:1-1 to :12-3 and OPRA.

       Although not referenced in the complaint, claims against

the State must meet the requirement of the TCA, which states:

"Except as otherwise provided by this act, a public entity is

not liable for an injury, whether such injury arises out of an

act or omission of the public entity or a public employee or any

other    person."        N.J.S.A.    59:2-1(a).           Accordingly,        immunity

generally applies and "liability is the exception."                      Fluehr v.

City of Cape May, 159 N.J. 532, 539 (1999).                    See also Dickson v.

Twp. of Hamilton, 400 N.J. Super. 189, 195 (App. Div.) ("'[T]he

public policy of this State is that public entities shall be

liable for their negligence only as set forth in the [TCA].'"

(quoting    Pico    v.   State,     116   N.J.      55,   59    (1989))),      certif.

denied, 196 N.J. 461 (2008).




                                          12                                  A-2266-12T3
      "Consistent         with       its    goals       of     restricting          governmental

liability in tort, the TCA requires that a claim be presented to

a public agency within ninety days after accrual of the cause of

action."       Greenway Dev. Co. v. Borough of Paramus, 163 N.J. 546,

552   (2000)        (citing     N.J.S.A.          59:8-8).           "Two    of     the    primary

purposes       advanced        by    the     notice       requirement          are:       (1)    'to

expedite investigation with the hope of reaching non-judicial

settlement'; and (2) 'to protect the public entity's access to

current       information       about       the        incident       giving       rise     to    the

claim.'"        Ibid.        (quoting Reale v. Twp. of Wayne, 132 N.J.

Super.    100,      109     (Law     Div.    1975)).           The        record    presents       no

compliance with the TCA's notice requirement, a lapse that is

fatal to recovery.             See N.J.S.A. 59:8-8(a).

      As to the claimed OPRA violations, we observe plaintiffs'

complaint       fails     to    allege       a     basis       for    relief        under       OPRA.

Further,       we    find     any     challenge          based       on    said     requests       is

untimely.

      The     record      reveals      OPRA       requests       were       filed    by    counsel

before and after plaintiffs filed their April 4, 2012 complaint.

Assuming      the    OPRA      requests      were       made     on       plaintiffs'      behalf,

which    is    not    clear         from    the    record,11         the    document       demands

submitted prior to initiating legal action were dated November

11
      The OPRA requests were filed by Anne M. Davis individually.



                                                  13                                      A-2266-12T3
23 and 30, 2011, December 20, 2011, and February 10, 2012.                           The

assertions of OPRA non-compliance arising from these requests

should have been filed within forty-five days of DOH's alleged

lapse.    See Mason v. City of Hoboken, 196 N.J. 51, 57 (2008)

("OPRA actions have a 45-day statute of limitations, consistent

with actions in lieu of prerogative writs.").                     See also R. 4:69-

6.   The claims will not be reviewed.

     Accordingly, the issues for our consideration are narrowed.

We   consider   whether         DOH     has      failed    to     comply   with      the

Legislature's    directives          set   forth     in    the    Act   and,   if    so,

whether   relief     is    available       through       this    court.    Also,      we

consider whether an actionable constitutional challenge has been

presented.

                                           II.

                                           A.

     Included      among       the     common      law    prerogative      writs      is

mandamus,    which   is    a    writ    directing        government     officials      to

carry out required ministerial duties.                     In re Application of

LiVolsi, 85 N.J. 576, 594 n.18 (1981) (citing McKenna v. N.J.

Highway Auth., 19 N.J. 270, 275-76 (1955)).                      A court-issued writ

of mandamus to a government official "'commands the performance

of a specific ministerial act or duty, or compels the exercise

of a discretionary function, but does not seek to interfere with




                                           14                                  A-2266-12T3
or control the mode and manner of its exercise or to influence

or direct a particular result.'"            In re Resolution of State

Comm'n of Investigation, 108 N.J. 35, 45 n.7 (1987) (quoting

Switz v. Middletown Twp., 23 N.J. 580, 587 (1957)).                    "Former

prerogative writs have been superseded" by Article VI, Section

V, paragraph 4 of the 1947 New Jersey Constitution, such that

actions in lieu of prerogative writs are now governed by Rule

4:69-1.      McKenna, supra, 19 N.J. at 274.12       See also Guhl, supra,

331   N.J.     Super.   at   333   ("When   our    1947     Constitution     was

prepared, pains were taken to insure not only that the court's

prerogative writ jurisdiction would remain intact, but also that

the manner of its exercise would be greatly simplified [N.J.

Const.] art. VI, sec. 5, [paragraph] 4).").               In this regard, it

is well-settled this court's "jurisdiction extends not only to

State agency action, but also agency inaction."                   Pressler &

Verniero,     Current   N.J.   Court   Rules,     comment   3.1   on   R.   2:2-

3(a)(2) (2014).




12
     The "Court recognized that the creation of the in lieu
proceeding by the Constitution of 1947 was not intended to
discard 'the substantive law of the former prerogative writs as
a means of safeguarding individual rights against public
officials and governmental bodies,' but was meant to avoid the
'defects of procedure that led to criticism.'" Brunetti v. New
Milford, 68 N.J. 576, 585-86 (1975) (quoting Ward v. Keenan, 3
N.J. 298, 308 (1949)).



                                       15                              A-2266-12T3
      Understanding the matter is properly before this court, we

emphasize our authority to compel agency action is exercised

sparingly, as courts are ill-equipped to micromanage an agency's

activities.     Sod Farm Assocs. v. Twp. of Springfield, 366 N.J.

Super. 116, 130 n.10 (App. Div. 2004).        Rather, we accord wide

discretion to administrative agencies which are to decide "how

best to approach legislatively assigned administrative tasks."

In re Failure by the Dep't of Bank. & Ins., 336 N.J. Super. 253,

262 (App. Div.), certif. denied, 168 N.J. 292 (2001).           We also

remain mindful separation of powers generally grants control of

policy-making to the Governor and Legislature.            United States

Trust Co. v. State, 69 N.J. 253, 259 (1976).

      An individual's challenge to the inaction of a State agency

can   seek     to   compel   only   clearly   "mandated     ministerial

obligations," which do not require an evaluative judgment in the

exercise of discretion.      Equitable Life Mort. & Realty Inv. v.

Div. of Taxation, 151 N.J. Super. 232, 238 (App. Div.), certif.

denied, 75 N.J. 35 (1977).

                  Mandamus   issues    "to   compel    the
             performance, in a specified manner, of
             ministerial duties so plain in point of law
             and so clear in matter of fact that no
             element of discretion is left as to the
             precise mode of their performance, but as to
             all   acts  or   duties  depending   upon   a
             jurisdiction to decide questions of law or
             to ascertain matters of fact, on the part of
             the officer or body at whose hands their



                                    16                          A-2266-12T3
           performance is required, mandamus will not
           lie."

           [Switz, supra, 23 N.J. at 588 (quoting
           Mooney v. Edwards, 51 N.J.L. 479, 481 (Sup.
           Ct. 1889)).]

    A ministerial duty is one that "is absolutely certain and

imperative, involving merely the execution of a set task, and

when the law which imposes it prescribes and defines the time,

mode and occasion of its performance with such certainty that

nothing remains for judgment or discretion."               Ivy Hill Park

Apartments v. N.J. Prop. Liab. Ins. Guar. Ass'n, 221 N.J. Super.

131, 140 (App. Div. 1987), certif. denied, 110 N.J. 188 (1988).

    In other words, "mandamus is an appropriate remedy '(1) to

compel specific action when the duty is ministerial and wholly

free from doubt, and (2) to compel the exercise of discretion,

but not in a specific manner.'"         Vas v. Roberts, 418 N.J. Super.

509, 522 (App. Div. 2011) (quoting Loigman v. Twp. Comm. of

Middletown, 297 N.J. Super. 287, 299 (App. Div. 1997)).

    Here, plaintiffs seek an order compelling DOH to: eliminate

"the unnecessary and/or overly burdensome hurdles to physicians

willing to prescribe marijuana in accordance with the [Act]";

complete background investigations on board members, staff and

interested parties of approved ATCs within thirty days; approve

or reject the licensure of the remaining three selected ATCs

within   thirty   days   and   select    different   ATC   applicants   to



                                   17                            A-2266-12T3
replace those rejected; and submit a report to the Legislature

and the Governor as mandated by N.J.S.A. 24:6I-12(a)(1) within

thirty days.       We must separately examine each of these requests.

      Regarding       the   regulatory        scheme      adopted       for   physician

certification of eligible MMP patients, plaintiffs allege the

regulations     are    "unnecessary         and/or   overly      burdensome."           To

support     their     claim,    plaintiffs         rely    on    certifications        by

Jeffrey S. Pollack, M.D. and Vanessa Waltz.                      Dr. Pollack states

he registered two patients and found the process "burdensome"

because he was required to provide patient-specific information

not   readily      accessible     in    his      patient's      file,    such   as    the

patient's full middle name, and asserts such information is not

mandated when he writes a prescription for pharmaceuticals.                             In

registering his second patient, Dr. Pollack reduced his time

expenditure     by    one-third,       to   twenty     minutes,     which     he   still

found excessive.       He suggests the process is a "nuisance."

      Waltz, a member of the Coalition for Medical Marijuana New

Jersey and not a physician, conducted "a non-scientific survey

of physicians registered with the [DOH] to recommend medical

marijuana     to     patients."         From      this    effort        she   concludes

physicians are reluctant to participate in the MMP because she

believes the DOH's website is ambiguous.




                                            18                                  A-2266-12T3
       When an agency violates the express policy of its enabling

act, the agency action may be deemed arbitrary and capricious.

Pub. Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl. Prot., 101

N.J. 95, 103 (1985) (noting that when determining whether action

is arbitrary and capricious, a court may consider "whether the

agency action violates the enabling act's express or implied

legislative        policies").       Intervention        is     warranted     when   the

action        is    unsupported       or        unaccompanied         by    reasonable

explanation.        Ibid.      However, a writ of mandamus, or its current

legal equivalent, is not available to an aggrieved party seeking

review of agency action.               "The writ of mandamus lay not to

review   but       to    compel."      McKenna,        supra,    19    N.J.    at    276.

(internal citation omitted).

       "[A]    strong       presumption     of    reasonableness"          attends    an

agency's exercise of its statutorily delegated duties, which "is

even   stronger         when   the   agency      has   delegated       discretion     to

determine the technical and special procedures to accomplish its

task."    In re Application of Holy Name Hosp. for a Certificate

of Need, 301 N.J. Super. 282, 295 (App. Div. 1997) (internal

quotation      marks     and    citation    omitted).           Moreover,     "[a]gency

rulemaking is not a ministerial function but rather a highly

discretionary       undertaking."          Equitable     Life,     supra,     151    N.J.

Super. at 238.            Accordingly, this court's role in reviewing




                                           19                                  A-2266-12T3
administrative decisions is limited.                       In re Taylor, 158 N.J.

644,   656   (1999).        We    defer     to      an   "agency's   expertise    and

superior knowledge of a particular field[,]" In re Herrmann, 192

N.J.   19,   28    (2007),       unless   the       agency's    interpretation     is

"plainly unreasonable."            In re Election Law Enforcement Comm'n

Advisory Op. No. 01-2008, 201 N.J. 254, 260 (2010) (internal

quotation marks and citation omitted).                      "Judicial deference is

particularly       appropriate        'when          the     case    involves     the

construction      of   a   new    statute      by    its    implementing   agency.'"

Natural Med., Inc. v. N.J. Dep't of Health & Senior Servs., 428

N.J. Super. 259, 270 (App. Div. 2012) (quoting In re Freshwater

Wetlands Prot. Act Rules, N.J.A.C. 7:7A-1.1 et seq., 238 N.J.

Super. 516, 527 (App. Div. 1989)).

       Following our review, we conclude to issue an order as

requested by plaintiffs has the potential of interfering with

the orderly workings of DOH in implementing the MMP, making

mandamus inappropriate.            In re Failure, supra, 336 N.J. Super.

at 262-63.     Dr. Pollack's certification is anecdotal and his two

experiences       fail     to    establish          plaintiffs'      assertions    of

unnecessary and burdensome regulatory requirements.                     Further, if

Dr. Pollack is aggrieved by agency action, recourse requires

initial administrative review and exhaustion of administrative

remedies, a course he has not pursued.                     Waltz offers no factual




                                          20                                A-2266-12T3
information based on personal knowledge.             She merely imparts her

opinion gathered from unidentified hearsay statements.                       This is

not   evidential,    and   is    insufficient       to   support   plaintiffs'

claim.

      We find significant the Legislature, which has actively

monitored the MMP regulations, raised no concerns regarding the

provisions addressed to a physician's patient registration for

the MMP.    See N.J.A.C. 8:64-2.1 to 2.6.           Indeed, the Legislature

has adopted no further resolutions challenging any of the MMP

rules or procedures.

      We also reject plaintiffs' claims of the need to conduct

discovery to develop this issue.            The type of discovery requests

suggested     is    neither     specific      nor    descriptive        of     what

information    is   held   by    DOH   that    is    necessary     to    support

plaintiffs' allegations.        For all of these reasons, we conclude

mandamus relief on this issue is inappropriate and is denied.

      Plaintiffs next challenge the lack of current operational

ATCs, asserting DOH has caused "unjustifiable delay" in meeting

its statutory mandate to render approval or rejection within

sixty days following receipt of a completed ATC application, as

required by N.J.S.A. 24:6I-7(e).            Plaintiffs contend the statute

mandates agency action, up or down, within sixty days.                          When

their complaint was filed, no ATC was operational, and now, more




                                       21                                A-2266-12T3
than three years following the effective date of the Act, only

one-half of the minimum ATCs authorized by the Act have been

fully    permitted.       Pointing        to    the    time    elapsed,       plaintiffs

assert delay in the commencement of ATC operations results from

DOH's purposeful inaction.              They seek an order directing DOH to

complete background investigations and issue licensure approving

or rejecting the remaining three ATCs within thirty days and if

one     of   the    original     ATCs     cannot       meet    the   standards,          its

application shall be rejected and the next available applicant

should be approved to commence operations.

      DOH opposes the requested relief, arguing it has engaged in

"extraordinary work" to make the MMP a reality.                         DOH identifies

the   myriad       components    necessary       for    licensure       and    maintains

court ordered action is inappropriate because permitting ATCs is

highly discretionary and not a mere ministerial act.                          We agree.

      In     evaluating       whether    the     requested       agency       action      is

ministerial or discretionary, we consider the language of the

statute      as    evincing     the     Legislature's         intent.         We    reject

plaintiffs' assertion that ATC licensure is ministerial.

      The Act grants DOH discretion to determine the kind and

amount       of    information        necessary        to     process     ATC       permit

applications and evaluate the need for and regulation of ATCs.

N.J.S.A. 24:6I-7 (a), (b) and (i).                 The Act further directs DOH




                                           22                                      A-2266-12T3
"shall issue a permit to a person to operate as an [ATC] if

[DOH] finds that issuing such a permit would be consistent with

the purposes of this [A]ct and the requirements of this section

are met[,]" and "shall approve or deny an application within

[sixty]    days        after    receipt    of     a   completed      application."

N.J.S.A.    24:6I-7(e).          "[T]he   Act     tasks     the   Commissioner     of

[DOH]"     with    the     responsibility        to    "promulgate       rules    and

regulations       to    effectuate    the       purpose     of    this   [A]ct,    in

consultation      with    the   Department      of    Law   and   Public   Safety."

Natural Med., supra, 428 N.J. Super. at 263 (quoting N.J.S.A.

24:6I-16(a)).          "In advance thereof, the Commissioner and the

Director of the Division of Consumer Affairs are authorized to

'take such anticipatory administrative action . . . as may be

necessary to effectuate the provisions of this [A]ct.'"                          Ibid.

(quoting L. 2009, c. 307, § 19).

            Although   use  of   the   term   "shall"   is
            generally indicative of the strength of the
            Legislature's intent, it has been construed
            on occasion as directory, suggestive or
            instructive, rather than imperative, where
            it relates to the form and manner in which
            the law is to be carried out and more
            clearly   implements    legislative    intent.
            Thus, the ordinary common meaning of "shall"
            may   be  overcome   by   something   in   the
            character of the legislation in the context
            which will justify a different meaning.

            [Id. at 268 (internal quotation marks and
            citations omitted).]




                                          23                                A-2266-12T3
      Only        thirteen       states     allowed     the       sale     of       medicinal

marijuana prior to adoption of the Act.                          N.J.S.A. 24:6I-2(c).

As noted, the details to effectuate New Jersey's program were

required to be formulated by the DOH.                            The record, although

limited, reflects DOH attacked its charge by timely conducted

rulemaking to adopt regulations governing the newly created MMP.

DOH expeditiously requested and approved six ATC applications.

When "considered in full," N.J.S.A. 24:6I-7 "does not allow for

automatic licensure" of an ATC whose application was approved.

Natural    Med.,        supra,    428     N.J.     Super.   at     268.         Rather,      it

presents      a       process,     coordinated        and     overseen         by    DOH    in

conjunction with other State agencies.

      Not only must the technical requirements of the Act be met

and the information contained in the application verified, but

an ATC must get ready for business operations, a process ignored

or significantly oversimplified by plaintiffs.                            The non-profit

corporations selected as New Jersey's first ATCs were required

to   obtain       a   location,     local        land-use   permits       or     variances,

necessary equipment, inventory, and financing.                           The ATCs hired

professional           and   non-professional           staff,       and        implemented

administrative,          production,        security,       quality        control,        and

distribution          procedures.         They    needed    to    fit-out       operational

space, train personnel, commence growing product, and meet state




                                             24                                      A-2266-12T3
health, safety, and security inspection standards.                           Approval of

ATC    operations         requires    review        and    input    from    other      State

agencies including the Departments of Law and Public Safety,

N.J.S.A. 24:6I-16(a), the State Police, N.J.S.A. 24:6I-4, -7,

-13,    and   the        Division    of   Consumer         Affairs,      N.J.S.A.    24:6I-

4(f)(1);      L.    2009,     c.    307   §    19,       and   necessitates    municipal

inspection         and    permitting.          Some        ATCs    met    opposition        by

communities wary of such an enterprise being located within its

boundaries.13        Even now it appears two ATCs await requisite site

permits.

       The record shows the scope of necessary review represents

the    fair   exercise       of     judgment       and    discretion,      which    is    the

province of the functioning agency.                      We cannot conclude from the

evidence presented DOH unjustifiably delayed issuing licensure

to allow ATC operations to commence.                       Plaintiffs offer no proof

an ATC's application was fully submitted but ignored by DOH, or

that selected ATCs have abandoned moving forward with proposed

operation because of barriers erected by the DOH.

       Further, plaintiffs' proposition as framed would require

DOH to automatically reject a previously accepted ATC, because


13
     See Amy Britain, Upper Freehold Committee Blocks Proposed
Medical   Marijuana   Greenhouse,  N.J.com   (Dec.   15,   2011),
http://www.nj.com/news/index.ssf/2011/12/upper_freehold_council_
blocks.html.



                                              25                                    A-2266-12T3
it could not open within thirty days.                     A decision approving an

ATC's operations involves a policy judgment by the agency.                           See

In re Petition of Howell Twp., Monmouth Cnty., 371 N.J. Super.

167, 188 (App. Div. 2004) (stating the court shall not "compel a

specific form of agency action" but may order "a remedy for

arbitrary inaction").            This court may not compel DOH to exercise

its   discretion       in    a    specific       manner    with   respect     to     the

discretionary agency review granted by the Act.                         See Loigman,

supra, 297 N.J. Super. at 299-300 (denying mandamus to compel

the Township to exercise its discretion in a specific manner

with respect to a disputed provision of a labor agreement).

      Although plaintiffs are not satisfied with the pace of ATC

openings,   we    cannot         conclude    the    delay     results    from      DOH's

failure     to        perform        its         regulatory       responsibilities.

Accordingly, we reject as unfounded plaintiffs' assertion DOH

has   engaged    in    arbitrary      conduct       amounting     to    an   abuse    of

discretion in authorizing ATC operations.                      The essence of the

relief sought does not encompass performance of "a specific,

ministerial action, a set task in terms of mode and manner that

leaves no discretion to the official."                      Vas, supra, 418 N.J.

Super. at 523.        Mandamus is denied.

      Nevertheless,         we    determine       plaintiffs      validly    question

whether DOH has ignored the time elapsed from approval of the




                                            26                                A-2266-12T3
initial applications and whether it must examine what period is

reasonable          for     an     approved          ATC       to     meet     requisites       for

commencement of operations.                        Breakwater Alternative Treatment

Center      does      not        have     a    designated            location       and    Harmony

Foundation, whose application received the second highest score

of    the   thirty-five           filed       with      the    review       committee,     appears

stalled in its progress, making its opening uncertain.                                    We agree

with     plaintiffs         DOH     has        a     responsibility           to    examine     the

viability of a prospective ATC's fulfillment of the requirements

to open for business.

       This    responsibility             is       tied       to    plaintiffs'      request      to

compel      DOH     to    submit        reports         to     the        Legislature     and   the

Governor, as mandated by N.J.S.A. 24:6I-12(a)(1), (2) and (c).

DOH admits no formal report has ever been compiled and offers no

justification for the delay in completing this task.                                      Instead,

the agency seeks to rely on its general public communications

and    annual       report        submittal          during         the     legislative     budget

process.       We conclude these communications are insufficient to

satisfy       the    statutory          directive.                 Accordingly,      plaintiffs'

request for mandamus on this issue is appropriate and must be

granted.

       Where an agency violates the express policy of its enabling

act    by   violating        the    clear          deadline         for    agency   action,     the




                                                   27                                     A-2266-12T3
omission is arbitrary and capricious.                         Pub. Serv. Elec. & Gas

Co.,    supra,    101     N.J.      at    103      (stating      the    determination         of

whether    agency       action      is   arbitrary        and      capricious,       allows    a

court    to    consider       "whether         the    agency       action      violates      the

enabling       act's     express         or    implied       legislative         policies").

Further, when an agency's inaction is unsupported by substantial

credible evidence in the record or accompanied by no reasonable

explanation — as is the case here — we, likewise, may conclude

an agency's inaction is arbitrary, capricious, and unreasonable.

Gilliland v. Bd. of Review, Dept. of Labor & Indus., 298 N.J.

Super.    349,    354-55       (App.      Div.       1997)   (deeming        agency    action

arbitrary and capricious where no explanation is provided to

support it).

       The Legislature's desire to assure progress of the MMP is

expressed under the Act, which directs DOH "shall report to the

Governor and the Legislature . . . no later than one year after

the    effective       date    of    this       act,    on      the    actions       taken    to

implement       the     provisions            of     this     act[,]"          and   annually

thereafter.        N.J.S.A.         24:6I-12(a)(1),          (2).        The    Commissioner

also    must    report     findings           regarding      the      sufficiency      of    the

number    of     ATCs    and     other        issues    within        two    years     of    the

effective date and every two years thereafter.                              N.J.S.A. 24:6I-

12(c).     We conceive of no reason justifying DOH's noncompliance




                                                28                                    A-2266-12T3
with these directives to take finite action within a fixed time

period.     The conduct required is not discretionary, but involves

a ministerial function.

    DOH's     reporting         requirement       is   designed      to    inform   the

identified branches of government as well as the public, and to

fully explain where the MMP stands on its expected delivery of

specified services to patients who need them.                      Discussion of the

current     progress      and    future      expectations       allows      evaluative

judgments    to    be   made     in   keeping      with   the      Act's    identified

purposes.     The absence of this information has likely led to

unfounded assertions, similar to those set forth in plaintiffs'

pleadings,    which       suggest     DOH    is    unconcerned       with     and   has

thwarted the MMP's development.

    Based on the record before us, we find no apparent basis

for continued delay in DOH's compliance with the clear reporting

provisions    in    the    Act.       Consequently,          our    intervention     is

justified.        See   Howell    Twp.,     supra,     371   N.J.    Super.    at   187

(stating the court shall not "compel a specific form of agency

action" but may order "a remedy for arbitrary inaction").                             We

compel DOH to file the required reports mandated by N.J.S.A.

24:6I-12(a)(1), (2) and (c), addressing the status of the MMP,

the viability of the ATC applicants which have yet to open, and

whether the number of existing licensed and operating ATCs fully




                                            29                                A-2266-12T3
serve   the      needs    of    registered         medicinal       marijuana      patients,

within forty-five days of the date of this opinion.

                                              B.

    Plaintiffs'           complaint       also     challenges       DOH's       action,      by

attacking     its      rulemaking        as   ultra    vires.          They      argue      DOH

"exceeded         [its]        legislative         authority         in        promulgating

regulations       so     overly    restrictive        they     serve      to    stifle      the

[MMP,]"     and     suggest       the    regulations         are    inconsistent          with

legislative       intent.          Specifically,        plaintiffs         rely      on     the

Legislature's adoption of the concurrent resolution, reported on

November 15, 2010 and published on February 22, 2011, as support

for the proposition the regulations are inconsistent with the

statutory mandate.           We are not persuaded.

    It is well settled, "administrative agencies derive their

authority from legislation," and an agency may not act "to alter

. . . [or] to frustrate the legislative purpose."                          In re Agric.,

Aquacultural, & Horticultural Water Usage Certification Rules,

410 N.J. Super. 209, 223 (App. Div. 2009) (citations omitted).

Article     V,     section        IV,    paragraph      6      of    the       New    Jersey

Constitution        allows      the     Legislature     to     review      any       rule    or

regulation of an administrative agency to determine whether it

is consistent with the intent expressed by the Legislature in

the statute.           If the Legislature finds the rule or regulation




                                              30                                     A-2266-12T3
violates the granted authority, it may invalidate or prohibit

the adoption of the proposed rule.                   N.J. Const. art. V, § IV,

¶ 6.

       Courts, on the other hand, have "a limited role to play in

reviewing the actions of other branches of government" and "can

act only in those rare circumstances when it is clear that the

agency    action     is   inconsistent       with    its   legislative       mandate."

Williams v. Dep't. of Human Servs., 116 N.J. 102, 107 (1989).

Appellate      "review       of     agency     regulations         begins     with     a

presumption        that     the     regulations       are      both      'valid      and

reasonable.'"        N.J. Ass'n of School Adm'rs v. Schundler, 211

N.J.   535,    548   (2012)       (quoting    N.J.    Soc'y      for   Prevention     of

Cruelty to Animals v. N.J. Dep't. of Agric., 196 N.J. 366, 385

(2008)).        "Such       judicial    deference         to   the     administrative

interpretation of a statute is even more appropriate 'when the

case     involves     the    construction       of    a    new     statute    by     its

implementing agency.'"            Freshwater Wetlands Prot. Act Rules, 238

N.J. Super. 516, 527 (App. Div. 1989) (quoting N.J. Guild of

Hearing Aid Dispensers v. Long, 75 N.J. 544, 575 (1978)).

              Though sometimes phrased in terms of a
              search   for    "arbitrary,   capricious    or
              unreasonable" action, Campbell v. Dep't of
              Civil Serv., 39 N.J. 556, 562 (1963), the
              judicial   role   is   restricted  to    three
              inquiries: (1) whether the agency's action
              violated the enabling act's express or
              implied legislative policies, (2) whether



                                         31                                   A-2266-12T3
          there was insubstantial evidence in the
          record to support the findings on which the
          agency based its actions, and (3) whether in
          applying the legislative policies to the
          facts, the agency clearly erred by reaching
          a conclusion that could not reasonably have
          been   made  after  weighing   the  relative
          factors.

          [Williams, supra, 116 N.J. at 108.]

See also Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186

N.J. 5, 16 (2006).    Accordingly, in our review of challenges to

an agency's exercise of authority, we "may not substitute [our]

judgment for the expertise of an agency 'so long as that action

is   statutorily   authorized   and    not   otherwise   defective[.]'"

Williams, supra, 116 N.J. at 107 (quoting Dougherty v. Dep't of

Human Servs., 91 N.J. 1, 12 (1982)).           This principle equally

applies to policymaking.    Dougherty, supra, 91 N.J. at 9-11.

     Finally, our Supreme Court has advised the judiciary that

"'an ultra vires finding is disfavored.'" Freshwater Wetlands

Prot. Act Rules, supra, 238 N.J. Super. at 525 (quoting N.J.

Guild of Hearing Aid Dispensers, supra, 75 N.J. at 561). And,

any party challenging a regulation must prove its invalidity.

N.J. State League of Municipalities v. Dep't of Cmty. Affairs,

158 N.J. 211, 222 (1999).




                                  32                           A-2266-12T3
       In this matter, in support of their contention, plaintiffs

point to the Legislature's adoption of the concurrent resolution

that     mandated       modification      of         three     rule        provisions.

Plaintiffs' brief emphasizes the ten percent THC limit imposed

by N.J.A.C. 8:64-10-6(c)(5) and the physician's certification

required   for    patient       enrollment     found     at    N.J.A.C.        8:64-2.5

illustrative     of    their    contention.          Otherwise,       they    offer      no

support for the assertion these regulations are ultra vires and

"stifling" the MMP.

       It cannot be ignored that following DOH's submission of

modified   rules,      the     Legislature     did    not     adopt    a     subsequent

proposed    concurrent         resolution,     purporting         to       invoke     the

constitutional        authority    to   void    rules.         The     absence      of   a

legislative veto of the remaining regulations suggests deference

should be afforded the regulations.                  Cnty. of Hudson v. State,

Dep't of Law & Pub. Safety, 328 N.J. Super. 308, 321, 324 (App.

Div. 2000).

       It is also clear that a challenge to an existing regulation

as applied must be made to the agency in the first instance.

Dr. Pollack has not exhausted available administrative remedies

to support his contention the patient certification provisions

are onerous and unnecessary.            Ortiz v. N.J. Dep't of Corr., 406

N.J. Super. 63, 65, 69 (App. Div. 2009) (holding that an appeal




                                        33                                     A-2266-12T3
may   not        be   maintained        where     a     party       fails       to   exhaust

administrative remedies by not exercising a statutory right to

an administrative appeal).                The challenge to the limitation is

accompanied by no support.                 Based on our review, the request

must be dismissed.

      Plaintiffs also claim the regulations are unconstitutional.

We need not address this assertion because no legal arguments

are offered to support the contention, aside from identifying

the   concurrent         resolutions.              As     noted,       the        concurrent

resolutions       targeted     three      regulations         for   modification.           In

this light, we deem the plaintiffs' attack on the entirety of

the regulatory scheme is unsupported.                    R. 2:11-3(e)(1)(E).

      Plaintiffs'        final       request       seeks       appointment           of    the

Coalition for Medical Marijuana of New Jersey as a "neutral

third party" to monitor DOH's compliance with the Act and the

implementation of the MMP.                We also reject this application.                   As

discussed in our opinion, other than its omission of required

progress     reports,        we    do     not     agree       DOH     has       ignored    its

responsibilities        or     refused      to    comply       with    the       legislative

mandate     to    implement       the   MMP.       The    need      for     a    third-party

monitor is unfounded.

      In    summary,     DOH      shall    render       its   status        report   to    the

Legislature and Governor as mandated by N.J.S.A. 24:6I-12(a)(1),




                                             34                                      A-2266-12T3
(2) and (c) within forty-five days of the date of this opinion.

Otherwise, for the reasons set forth, plaintiffs' requests for

relief are denied and their complaint is dismissed.




                               35                      A-2266-12T3
