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New Jersey's Medical Marijuana Muddle [FEATURE]

More than a year after then Gov. Jon Corzine (D) signed New Jersey's Compassionate Use Act into law, it has yet to be implemented. Corzine's replacement, Gov. Chris Christie (R) first delayed implementing the program, then his Health Department promulgated draft regulations that the medical marijuana community and the legislature consider to be against both the spirit and the letter of the law.

Gov. Chris Christie (R) and bill sponsor Assemblyman Russ Gusiora (D)
It's unclear what will happen next. The Christie administration is moving forward with implementation, saying it is accepting applications for dispensaries, or alternative treatment centers (ATCs), although it won't name the applicants. But the legislature may move to invalidate all or part of the regulations, and if it does that, it isn't clear what that will mean for the program, either.

While the Assembly sponsor of the bill, Assemblyman Reed Gusciora (D), came to an agreement with Christie in December, the Senate sponsor, Sen. Nick Scutari (D) remains unhappy with the regulations. A call to his office Wednesday about his intentions had not been returned by press time.

The New Jersey medical marijuana law was already the most restrictive in the nation before the Christie administration moved to make it even more so. It allows patients suffering from certain debilitating and life-threatening illnesses such as cancer, HIV/AIDS, and multiple sclerosis to use and possess medical marijuana with a doctor's recommendation. It calls for the licensing of ATCs where qualifying patients could safely access medical marijuana. Patients cannot grow their own medicine.

A public hearing on the proposed regulations Monday saw almost unanimous condemnation of the regulations, as patients, providers, advocates, and family members lined up unleash volleys of criticism at the proposed rules. Only one person, a spokesman for Meadowlands Hospital in Secaucus, which has applied for an ATC permit, applauded the rules.

More typical was multiple sclerosis patient Sandy Faiola of Asbury Park. Riding a scooter to the microphone, Faiola asked why the state wants to limit the potency of medical marijuana to 10% THC, well below the levels obtained in medical marijuana strains used in other states.

Sen. Scutari and patient/activist Mike Oliveri after the January 2010 vote (cmmnj.org)
"Cannabis with THC levels of 10% or less may help some patient's needs, but not mine," she said. She also criticized a proposed $200 fee for caregivers as "excessive," especially since all caregivers can do in New Jersey is retrieve a housebound patient's medicine from the ATC. "My primary caregiver already spends many hours a month helping me do things like travel to appointments and pick up medicine, food and other things I need. Asking her to also pay $200 for a New Jersey permit in order to help me get this medicine is wrong," Faiola said.

"These regulations are unconstitutional; they are arbitrary and capricious," said attorney Justin Escher Alpert, a patient from Livingston. "They are against the spirit of the law."

"There's a big difference between ensuring that only qualified patients have access and ensuring that qualified patients do have access," said Jim Miller, whose late wife Cheryl died of multiple sclerosis and used medical marijuana for relief.

But while the public hearing sent a powerful message to the Christie administration, it is not clear that anyone is listening. Health Department representatives at the hearing took no questions, and the department has said only that it will review the testimony before making the regulations final in April.

"It's very disappointing," said Roseanne Scotti, head of the Drug Policy Alliance New Jersey office. "I don't know if the health department heard what got said, but they certainly got an earful."

"We don't expect any changes to come out of that hearing," said Ken Wolski, director of the Coalition for Medical Marijuana-New Jersey. "The administration has demonstrated pretty clearly that Gov. Christie is making the decisions, and it doesn't really matter what we say."

"We hope the legislature will continue to follow through with what they started in December, when they passed resolutions saying the regulations were not consistent with the spirit or the the letter of the law," said Wolski. "The next step is for them to invalidate all or part of those regulations. We've already told the legislature exactly what is unacceptable."

"The administration is saying it isn't going to change anything, so the only thing that would radically change the regulations is if the legislature takes the next step and moves to invalidate them," said Scotti. "There is probably something going on behind the scenes between the administration and Scutari, but we don't have a definite answer on whether they will move to invalidate."

It is also unclear what would happen to the program if the legislature does move to invalidate some or all of the regulations. As noted above, the health department is taking applications for ATCs and will soon begin registering patients, so the program is moving toward implementation, even if it is badly flawed.

"We don't have a clear answer as to how this might play out," said Scotti. "The legislature can rewrite the regulations if they choose to, but they would still have to go through a process, and it could be a huge fight between the administration and the legislature. It could end up in a huge court battle."

"There is a provision in New Jersey law that would let the legislature invalidate part of the regulations," said Wolski. "If you took out the unacceptable parts, you would wind up with a much better program. It's incumbent on the legislature to really take charge here and show the department what are acceptable regulations."

"We are continuing to do everything we can to make our voices heard, we've turned out large numbers of people, but its looks like it's going to be a much longer battle than we thought it would be last January," said Scotti.

Trenton, NJ
United States
Permission to Reprint: This article is licensed under a modified Creative Commons Attribution license.
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writ of mandamus

If the legislation has called for certain things on the administration's part, and the admin. is not doing them or is doing them wrong, could you go to court for a writ of mandamus?

writ of mandamus

If the statute that's been adopted calls for certain things that the administration isn't doing, or is doing wrong, can you go to court for a writ of mandamus?

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