RICHARD CAPORUSSO аnd JILL CAPORUSSO, CAROLINE GLOCK and OTHERS SIMILARLY SITUATED; JEFFREY S. POLLACK, M.D. v. NEW JERSEY DEPARTMENT OF HEALTH AND SENIOR SERVICES, 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
DOCKET NO. A-2266-12T3
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
January 13, 2014
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
APPROVED FOR PUBLICATION January 13, 2014 APPELLATE DIVISION
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.
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),
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
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 сlaim 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 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 datе 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
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.
DOH discharged its rulemaking responsibility by proposing rules for the MMP on Novembеr 15, 2010. 42 N.J.R. 2668(a)
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 taken to implement the provisions of this act[,]” and annually thereаfter.
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
Breakwater Alternative Treatment Center lists its location as Central New Jersey7 and Harmony Foundation lists an address
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.
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:
- Requiring [the Commissioner] to see to it that the statute is properly implemented and the scheme contained in the [Act] . . . is obeyed[;]
- Compelling . . . [the] Director of the [MMP] to promptly comply with the [Act] and the [l]egislativе directives in [the Act] by:
- Immediately establishing a workable program eliminating the unnecessary and/or overly burdensome hurdles to physicians willing to prescribe marijuana in accordance with the [Act];
- Completing background investigations on all six (6) [ATCs‘] entire board members, staff and interested parties within [thirty] days;
- Approving or denying each of the six (6) selected ATC applicants within [thirty] days;
- Rejecting any disqualified applicant and appointing another ATC operator in the event that an ATC applicant is disqualified.
- 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.
- Declaring that the [MMP] regulations as promulgated by the [DOH] are ultra vires;
- Declaring that the MMP regulations as promulgated by the DOH are unconstitutional;
- Apрointing 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;
-
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; - Providing [the Coalition for Medical Marijuana of New Jersey] shall be compensated at a reasonable rate out of the MMP budget;
- Granting qualified and registered patients a defense from criminal prosecution that they otherwise would have been afforded had they possessed an ID card;
- 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 equitablе 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),
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
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 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),
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.”
“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
As to the claimed OPRA violations, we observe plaintiffs’ complаint 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 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
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 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 actiоns in lieu of prerogative writs are now governed by
Understanding the matter is properly before this court, we emphasize our authority
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 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 replace those rejected; and submit a report to the Legislature and the Governor as mandated by
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 рatients and found the process “burdensome” because he was required to provide patient-specific
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 believеs the DOH‘s website is ambiguous.
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 stаtutorily 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 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
information based on personal knowledge. She merely imparts her opinion gathered from unidentified
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
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
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.
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).]
Only thirteen states allowed the sale of medicinal marijuana prior to adoption of the Act.
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-profеssional 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 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,
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 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
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 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
Where an agency violates the express policy of its enabling act by violating the clear deadline for agency action, the 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.
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
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
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
Thоugh 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 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.
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 nоt 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).
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
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 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’ 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
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION