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From Health Law Daily, January 14, 2014

State compelled to fulfill reporting requirements of medical marijuana legislation, no other action mandated

By Melissa Skinner, JD

The New Jersey Department of Health (DOH) was directed to fulfill reporting requirements implemented under the state’s Medicinal Marijuana Program (MMP) because the agency’s general public communications and annual reporting during the legislative budget process was not sufficient to fulfill the requirement of specifically submitting reports to the governor and legislature. However, the DOH was not compelled to take any other action to further implement the MMP, as the New Jersey state court found it did not have discretion to mandate this progress (Caporusso v New Jersey Dept. of Health and Senior Services, January 13, 2014, Lihotz, M).

New Jersey MMP. The New Jersey Compassionate Use Medical Marijuana Act (the Act) was adopted in the state to legalize the production, sale, and consumption of medicinal marijuana by patients with debilitating medical conditions. The Act includes few specifics and instead instills the responsibility of rulemaking for the implementation of this legislation with the DOH. The DOH rules, which were initially found by the state legislature to be inconsistent with the Act and then modified by the DOH, were finalized and adopted in 2011. Since then, the DOH has selected six alternative treatment centers (ATCs) to operate throughout the state and before the complaint in this case was filed, three ATCs had opened.

Complaint. A group of New Jersey citizens, including two patients diagnosed with debilitating medical conditions qualified for medicinal marijuana, Richard Caporusso and Caroline Glock, and a physician who has attempted to provide certifications for certain patients for the MMP, Dr. Jeffrey Pollack (collectively Caporusso), brought a suit against the DOH requesting injunctive and declaratory relief to effectuate the operation of the Act. The court divided Caporusso’s complaint into several issues to address including DOH’s inaction in implementing certain provisions of the Act, due process violations, DOH’s inaction insofar it amounts to an intentional torts or negligence, and DOH’s noncompliance with the New Jersey Open Records Public Act (OPRA).

Holding. The court summarily dismissed the tort and OPRA claims holding a tort claim against a public entity must be properly noticed after the cause of the tort, and requests under OPRA were untimely. In terms of DOH’s inaction the court only found that DOH failed to comply with reporting requirements under the ACT and, in turn, should be compelled to fulfill those requirements. The court rejected DOH’s argument that general communications between DOH and the legislature over the MMP and its budget constituted fulfillment of that requirement. Denying the other claims for action brought by the Caporusso complaint including the elimination of hurdles for prescribing physicians and the DOH unjustifiable delay with regard to the opening of additional ATCs, the court noted that a “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.” The court also dismissed Caporusso’s constitutional attack due to a lack of evidence presented for that argument.

The case number is A-2266-12T3.

Attorneys: Anne M. Davis (Law Offices of Anne M. Davis) for Richard Caporusso. Michael J. Kennedy, Attorney General’s Office, for New Jersey Department of Health.

Companies: New Jersey Department of Health

MainStory: TopStory CaseDecisions ControlledNews DrugBiologicalNews NewJerseyNews

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