NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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