In a rare 2-1 decision, New Jersey’s intermediate appeals court has overturned the decision of New Jersey’s Director of Consumer Affairs that he does not have the authority to reschedule marijuana from a Schedule I to Schedule IV substance. The dissent affords the state the right of appeal to the New Jersey Supreme Court, and the state quickly confirmed it will appeal.

Contrary to several early press reports, including Associated Press coverage reprinted nationally, the appellate judges did not require the Director to review Schedule I status.

The court simply held “that the Director erred in determining he lacked authority to reclassify” when he rejected a petition for reclassification submitted by a convicted drug kingpin. The decision highlighted the plight of a far more sympathetic amicus, a child for whom marijuana provides the only effective relief from seizures and who is unable to have school nurses administer prescribed marijuana on school grounds due to Schedule I classification.

The court specifically held it was not determining whether the current classification is justified. While that issue “is certainly ripe for a determination by the Director,” the court did “not mandate reclassification.”

The majority did note that recent research and authorization of medicinal marijuana in New Jersey and other states suggested that marijuana no longer met the Schedule I requirement that a substance have “no commonly accepted medical use in treatment” in the US, or “lack accepted safety for use in treatment under medical supervision.” The court observed that medical benefits from the use of marijuana “are abundant and glaringly apparent now,” suggesting that there may be a legal basis for the Director to reschedule marijuana.

With New Jersey upcoming governor’s election being held next week, the decision is most important in that it clears the way for the next governor to reclassify marijuana if she or he is inclined. As a reported decision, it is of binding statewide effect unless appealed and overturned. The Governor appoints the Attorney General in New Jersey.

The decision also underscores the central role New Jersey’s next Attorney General will have in future state marijuana regulation. The Director of Consumer Affairs reports to the AG, and the Division of Marijuana Enforcement proposed in pending adult use legislation will likewise report to the AG. As well, the AG also advises the Department of Health on the existing medicinal program.