NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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,

(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,

(1999). See also Dickson v.

Twp. of Hamilton,

(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,

(1989))), certif.

denied,

(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,

(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.'"

(quoting Reale v. Twp. of Wayne,

(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,

(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,

, 594 n.18 (1981) (citing McKenna v. N.J.

Highway Auth.,

(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,

, 45 n.7 (1987) (quoting

Switz v. Middletown Twp.,

(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,

.12 See also

("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,

, 585-86 (1975) (quoting Ward v. Keenan,

(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,

, 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.,

(App. Div.), certif. denied,

(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,

(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,

(App. Div.), certif.

denied,

(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,

(quoting Mooney v. Edwards,

(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,

(App. Div. 1987), certif. denied,

(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,

(App. Div. 2011) (quoting Loigman v. Twp. Comm. of

Middletown,

(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.,

(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.

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."

.

(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,

(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,

. Accordingly, this court's role in reviewing

19 A-2266-12T3 administrative decisions is limited. In re Taylor,

(1999). We defer to an "agency's expertise and

superior knowledge of a particular field[,]" In re Herrmann,

(2007), unless the agency's interpretation is

"plainly unreasonable." In re Election Law Enforcement Comm'n

Advisory Op. No. 01-2008,

(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.,

(App. Div. 2012) (quoting In re Freshwater

Wetlands Prot. Act Rules, N.J.A.C. 7:7A-1.1 et seq.,

(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

. 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,

(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.'"

(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,

. 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.,

(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

(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."

. 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,

(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.,

(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,

(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,

(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.,

(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,

(2012) (quoting N.J. Soc'y for Prevention of

Cruelty to Animals v. N.J. Dep't. of Agric.,

(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,

(App. Div. 1989) (quoting N.J. Guild of

Hearing Aid Dispensers v. Long,

(1978)).

Though sometimes phrased in terms of a search for "arbitrary, capricious or unreasonable" action, Campbell v. Dep't of Civil Serv.,

(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,

.]

See also Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs,

(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[.]'"

(quoting Dougherty v. Dep't of

Human Servs.,

(1982)). This principle equally

applies to policymaking.

.

Finally, our Supreme Court has advised the judiciary that

"'an ultra vires finding is disfavored.'" Freshwater Wetlands

Prot. Act Rules, supra,

(quoting N.J.

Guild of Hearing Aid Dispensers, supra,

). And,

any party challenging a regulation must prove its invalidity.

N.J. State League of Municipalities v. Dep't of Cmty. Affairs,

(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,

(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.,

(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