Thursday, February 3, 2011

Legislative authority over Compassionate Use Regulations

January 27, 2011

Hon. Nicholas P. Scutari

1514 E. St. Georges Ave.

Linden, New Jersey 07036

Re: Legislative authority over Compassionate Use Regulations

Dear Senator Scutari:

You have the gratitude of tens of thousands of patients for steadfastly supporting them in their struggle for the right to use marijuana when it has been documented to ease their suffering. In January 2010, with the enactment of the Compassionate Use Medical Marijuana Act, your leadership caused New Jersey to acknowledge abundant scientific evidence and recognize that a patient’s legal right should be in accord with their moral rights. Incredibly, one year after the Act’s passage not one patient has been able to access legal marijuana nor even register as a patient. It is thus obvious that it will take even greater leadership and dedication to implement the law.

As you have emphasized, the required regulations promulgated by the Department of Health and Senior Services, too often violate the letter and intention of the Act. These regulations serve to interfere with an effective program and insult patients, caregivers, physicians and those poised to operate alternative treatment centers. Earlier this month, I testified on behalf of the Coalition for Medical Marijuana--New Jersey at the Senate Health Committee Hearing to emphasize the legislature’s authority and obligation under the New Jersey Constitution to respond to this unprecedented situation. Obviously, many provisions of the proposed regulations must be completely eliminated. But that is not sufficient to provide for safe, effective implementation. One cannot build simply by tearing down.

While eliminating offending portions in the 97 pages of substantive language, we in CMMNJ realized it is often necessary to add words or phrases so that otherwise disjointed portions of remaining language could function properly. In my legal opinion, such additions are within the ambit of the New Jersey Constitution and the Administrative Procedures Act (APA), both of which specifically authorize the legislature to invalidate regulations in whole or part. Initially, it must be recognized that neither the Constitution nor the APA impose any limitation whatsoever on this considerable power to reject regulations. In fact, it would be a significant, inconsistent and illogical limitation to construe those enactments to bar the legislature from inserting necessary additional language as part of its invalidation.

The legislature is superior to the executive in determining whether the regulations proposed by the latter meet the legal intention expressed by the former. Thus, the New Jersey Constitution in Article V, which enumerates the powers and duties of the executive, also sets forth the legislature’s broad and absolute power to invalidate the executive’s regulations. It is simply unfathomable that this constitutionally expressed power would be absurdly limited essentially to the use of an eraser. Such a broad power cannot fail to encompass the right to insert any words, however minimal or necessary to effectuate the invalidation. A limitation of this nature would interfere with the legislature’s overriding power to achieve its statutory aims through the invalidation of ultra vires regulations.

In considering the absolute power to completely invalidate an entire regulation, one may rely on the unassailable philosophical precept that the greater must, by necessity, always include the lesser. It is patently inconsistent to contend the legislature can vacate an entire provision but cannot insert a few words to complete its invalidation of the existing regulation. Moreover, if the legislature is limited to either accepting an entire provision or rejecting it entirely and returning it to the agency in the hope of additional desirable language, the process can too easily devolve into an endless loop. Such a process places an undue and unnecessary burden even on an agency acting in good faith by forcing it to guess at the precise language satisfactory to the legislature. And, if one urges that the legislature can simply request that the agency add certain specific language, it is a pointless punctilious exercise to preclude it from directly inserting such language in a provision that it is empowered to completely eliminate.

As you well know, it is long accepted legal precedent that courts construe enactments to effectuate rather than obstruct their intent. When faced with seemingly contradictory provisions, courts strain to interpret enactments to avoid rendering them meaningless or ineffective. In invalidating portions of a regulation, especially a long complex one, the task would be virtually impossible without the ability to add minimal but necessary words or phrases. The alternative is to discard whole portions of the regulation in their entirety, demand a rewrite and wait for a re-promulgation that one hopes will cure numerous defects. At best this is wasteful and contrary to the public interest. In this circumstance, with thousands of patients suffering daily, it is unnecessarily cruel to adopt such an approach.

One year after the Act’s passage, deliberate administrative resistance has resulted in not one patient benefiting in any way. The second agency proposal is only marginally better on a few points than its original one but remains far too defective and offensive to accept as a reasonable regulation for compassionate use. No patient should bear the burden of

trusting or even expecting the agency to do any better on its third attempt, or its fourth, ad infinitum. The agency regulations as initially written and recently revised evince a clear prejudice against the efficacy of medical marijuana. Moreover, they treat the process and all involved as if medical marijuana remains a criminal enterprise rather than a statutorily authorized right. The administration’s message here is abundantly transparent: their regulations will supersede the intent of the law and contravene the compassion necessitated by the Act. Eliminating offensive provisions in such a regulation, while necessary, is insufficient to result in one that serves all those covered by the Act.

Strikeouts alone cannot overcome the adverse mindset embodied in 97 pages of hostile, overly detailed regulations. An effective invalidation in this case requires adding what cumulatively may be the equivalent of perhaps one page of text. This is a de minimus act and one that is well within the legislature’s absolute power over regulations. It is certainly far less obtrusive and serves the goal far better than the obliteration of entire sections of the regulation that otherwise could remain as revised. Under the current circumstances, the right to add words as part of the invalidation is an absolute necessity if the intent of the statute is to ever be fulfilled.

Long-suffering patients should not be made to endure the demonstrated futility of returning the regulations to the Department of Heath and Senior Services for what will be its third try. All it will do is lengthen the already intolerable delay. We are confident in ensuring the legislature’s ability to add necessary language in exercising the invalidation right granted it by our Constitution. It is imperative that the legislature act so as to create a regulation that is fair and effective and do so without permitting further foreseeable impediments to implementation.

Very truly yours,

Edward R. Hannaman, Esq.

Board Member CMMNJ

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