Updated: Tuesday, October 31, 2017, 6:42 PM
In a striking move Tuesday, a New Jersey appeals court ordered a regulatory agency to consider changing the decades-old classification of marijuana as a dangerous drug with no value, especially since the state now has a medical-marijuana program that is helping patients.
In 1971, when New Jersey adopted the federal classification of marijuana as a Schedule 1 dangerous substance, deemed the most dangerous of drugs along with heroin and LSD, there may have been no widely accepted medical uses for marijuana, the three-judge panel said in its 19-page decision. But “medical benefits from the use of marijuana not known in 1971 … are abundant and glaringly apparent now,” the court wrote.
The court said in its 2-1 decision that the director of the Division of Consumer Affairs, the agency that classifies drugs, has the authority to change the classification and is obligated to do so after reviewing the scientific evidence and other factors. The state Attorney General’s Office argued that the director must adhere to the Schedule 1 classification established by the federal government in 1970.
The Attorney General’s Office plans to appeal the decision to the Supreme Court.
“The division disagrees with the majority’s opinion and intends to appeal,” said Leland Moore, a spokesman for the Attorney General’s Office.
But Joseph Linares, with the Newark-based Walsh Firm, said the new ruling sets precedent for now, and the reasoning could be cited in future cases. “This is the first case in New Jersey to hold that marijuana has accepted use in medical treatment,” he said. He also said he was not aware of any other state court in the country that has reached this conclusion.
“It’s important because we got clarity on the law,” he said. “Before that, we had two statutes on the books, one where it said marijuana has no value and one where it says there are acceptable uses.”
When New Jersey lawmakers passed the Compassionate Use Medical Marijuana Act in 2009, they recognized the law could be interpreted as in conflict with federal laws that consider marijuana as illegal. But the new law narrowly defined who would be eligible to use marijuana — those who have certain ailments and who register for a special state-run program — and it also stipulated that marijuana would be restricted to medical use.
But the passage of this law also paved the way for challenges to the classification of marijuana as Schedule 1 in New Jersey.
Linares and attorney Marc Haefner took on the case pro bono on behalf of Steven Kadonsky, a drug kingpin who had petitioned the consumer affairs director in 2013 to ask that the classification be changed. Kadonsky, who is in prison serving a life sentence for possessing and distributing marijuana, cited studies that he said showed marijuana is not as harmful as once believed.
Currently 29 states have legalized medical marijuana, 21 have decriminalized the possession of marijuana, and eight states and the District of Columbia allow the recreational use of marijuana, similar to alcohol, the court decision said.
“Scientific research suggests that marijuana has ‘potential therapeutic value’ for pain relief, control of nausea and vomiting, and appetite stimulation,” the court said, citing a 1999 Institute of Medicine report. “In addition, it has been reported that marijuana reduces muscle spasms and spasticity; reduces intraocular pressure; and reduces anxiety.”
The court also noted that G.B., a teenager, suffers from epilepsy and was given marijuana to treat her seizures under the state’s marijuana program.
In interviews, the girl’s family has said she is named Genny. Her father, Roger Barbour, a Maple Shade lawyer who died in September of last year, had filed an amicus brief in the case saying declassification of marijuana would allow his daughter to receive her afternoon dose of marijuana from the school nurse. He argued that the Schedule 1 classification had prevented the nurse from doing this, and that he and his wife, Lora, had to take her out of school early each day so she could be given her medicine.
The court said this situation illustrates one reason declassification should be considered.
An attempt to reach Lora Barbour was unsuccessful.