Split New Jersey appeals court holds state officials can (and should?) consider reclassifying marijuana under state drug schedules

The Appellate Division of the Superior Court of New Jersey issued an interesting opinion today in Kadonsky v. Lee, No. A-3324-14T4 (N.J. App. Oct 31, 2017) (available here), resolving a appeal of the denial of a petition "seeking to have marijuana rescheduled from a Schedule I controlled dangerous substance to Schedule IV" under New Jersey laws. The majority remanded the case, explaining that reconsideration of marijuana's scheduling could be done under existing laws:

While this issue is not squarely before us, it is certainly ripe for a determination by the Director. When the inconsistencies of sections (a) and (c) of N.J.S.A. 24:21-3 are viewed through the prism of the dicta in Tate, we conclude that the Director erred in determining he lacked the authority to reclassify marijuana without a change in existing federal law.

The dissenting opinion starts with an effective account of the ruling and the judges' disagreements:

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.