NOT FOR PUBLICATION WITHOUT THE 

APPROVAL OF THE APPELLATE DIVISION 

 SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-1227-22

MARY A. BOTTEON, KEREN 

EBEL AVERY (MD), PETER 

AVERY, ROSA ROLAND, FELIPE 

ROLAND, JUAN FUENTES, 

RAISA BORODAY, IRINA A. 

LOPEZ, SUMBAL LATIF, 

MARGARETHA WEXLER, 

NATHALIE CHICA, and DAE 

HAN, JOINTLY, 

 Plaintiffs-Appellants, 

v.

BOROUGH OF HIGHLAND 

PARK, GAYLE BRILL MITTLER, 

TARA CANAVERA, ELSIE 

FOSTER, PHILIP GEORGE, 

MATTHEW HALE, MATTHEW 

HERSH, and STEPHANY KIM 

CHOHAN (IN THEIR 

INDIVIDUAL AND OFFICIAL 

CAPACITIES), JOINTLY, 

 Defendants-Respondents. 

Argued March 18, 2024 – Decided May 1, 2024 

Before Judges Sabatino, Chase, and Vinci. 

On appeal from the Superior Court of New Jersey, Law 

Division, Middlesex County, Docket No. L-2068-22.

APPROVED FOR PUBLICATION 

AS REDACTED 

May 1, 2024 

APPELLATE DIVISION 
2 A-1227-22

David G. Evans argued the cause for appellants. 

Paul M. Bishop argued the cause for respondents 

(Mason, Griffin & Pierson, PC, attorneys; Paul M. 

Bishop, of counsel and on the brief). 

Nathaniel I. Levy, Deputy Attorney General, argued the 

cause for amicus curiae State of New Jersey (Matthew 

J. Platkin, Attorney General, attorney; Michael L. 

Zuckerman, Deputy Solicitor General, and Melissa H.

Raksa, Assistant Attorney General, of counsel; 

Nathaniel I. Levy, Jacqueline R. D'Alessandro, Mark D. 

McNally, and Tim Sheehan, Deputy Attorneys General,

on the briefs). 

The opinion of the court was delivered by 

SABATINO, P.J.A.D. 

This appeal concerns two ordinances of the Borough of Highland Park that 

amended its municipal code to allow cannabis retailers, consumption lounges, 

and delivery services to operate in the Borough, subject to operating, licensing, 

and tax regulations. Although the ordinances were enacted under express 

authority delegated by the Legislature through New Jersey's recreational 

marijuana statute,1 several concerned residents of the Borough challenged the 

ordinances in the Law Division as preempted by the federal Controlled 

1

 The Cannabis Regulatory, Enforcement Assistance, and Marketplace 

Modernization Act ("CREAMMA"), N.J.S.A. 24:6I-31 to -56, became effective 

February 22, 2021. 
3 A-1227-22

Substances Act ("CSA"), 21 U.S.C. § 801. They also claimed the ordinances 

are inconsistent with the New Jersey Municipal Land Use Law ("MLUL"), 

N.J.S.A. 40:55D-1 to -163, and other state and federal laws. The trial court 

dismissed the complaint as procedurally untimely and also substantively 

deficient for failure to state a claim. 

For the reasons that follow in the published portion of this opinion, we 

reverse the trial court's dismissal of the complaint as untimely under Rule 4:69-

6(a), but we affirm the trial court's dismissal of plaintiffs' preemption claims. 

As to the former, the issues presented concern sufficient matters of public 

interest to qualify under Rule 4:69-6(c) for an enlargement of the filing period. 

As to the latter, our de novo review concludes that, as other state courts have 

found, the text of the CSA and federal marijuana enforcement policies do not 

require a finding of conflict preemption of CREAMMA or the Borough's 

ordinances. 

In the unpublished portion of this opinion, we remand plaintiffs' remaining 

state-law claims, which were dismissed without an opportunity for discovery 

and without a possible evidentiary hearing, if one proves necessary to resolve 

expert opinion and credibility issues. 

We also make clear the present facial challenge to the ordinances does not 
4 A-1227-22

foreclose any separate future "as-applied" challenges that might address their 

application and implementation. 

I.

We begin with an overview of CREAMMA's pertinent features. 

The Passage of CREAMMA 

 In State v. Gomes, 253 N.J. 6, 23-25 (2023), the Supreme Court described 

the history of CREAMMA as follows: 

In the November 2020 general election, the voters 

adopted an amendment to the New Jersey Constitution

legalizing the possession, consumption, and 

commercialization of cannabis and products containing 

it by persons twenty-one years of age or older, but

'subject to regulation by the Cannabis Regulatory 

Commission.' Made effective January 1, 2021, the 

amendment, Article IV, Section 7, Paragraph 13 of the 

New Jersey Constitution states as follows: 

The growth, cultivation, processing, manufacturing,

preparing, packaging, transferring, and retail 

purchasing and consumption of cannabis, or products

created from or which include cannabis, by persons 21 

years of age or older, and not by persons under 21 years 

of age, shall be lawful and subject to regulation by the 

Cannabis Regulatory Commission created by L. 2019, 

c. 153 ([N.J.S.A.] 24:6I-5.1 et al.), or any successor to 

that commission. 

. . . . 

'On February 22, 2021, the Legislature enacted three 

bills to establish a broad regime of civil and criminal 
5 A-1227-22

provisions to regulate the newly legalized activity and 

achieve the constitutional amendment's public policy 

goals.' DCPP v. D.H., 469 N.J. Super. 107, 128 (App. 

Div. 2021), certif. denied, 250 N.J. 347 (2022) and 250 

N.J. 395 (2022). The three enacted bills included 

Chapter 16 (enacting A. 21 (2020)), known as 

CREAMMA, codified in relevant part at N.J.S.A. 

2C:35-5 to -10 and N.J.S.A. 24:6I-24. The other two 

adopted bills are Chapter 19, an act 'concerning certain 

criminal and civil justice reforms,' L. 2021, c. 19 

(enacting A. 1897 (2020)), and Chapter 25, an act 

'addressing certain regulated substances, with a 

particular emphasis on possession or consumption of

various forms of cannabis,' L. 2021, c. 25 (enacting A. 

5342 (2021)). 

In its findings and declarations section, CREAMMA 

articulates a legislative intent 'to adopt a new approach 

to our marijuana policies . . . in a similar fashion to the 

regulation of alcohol for adults.' N.J.S.A. 24:6I-32(a). 

The statute broadly includes fourteen other findings and 

declarations. Among them, finding (e) highlights that 

'Black New Jerseyans are nearly three times more likely 

to be arrested for marijuana possession than white New 

Jerseyans, despite similar usage rates.' Id. at -32(e). 

Finding (f) acknowledges that New Jersey spends 

millions per year in marijuana possession enforcement 

costs. Id. at -32(f). In addition, finding (n) recognizes 

that '[a] marijuana arrest in New Jersey can have a

debilitating impact on a person's future, including

consequences for one's job prospects, housing access, 

financial health, familial integrity, immigration status, 

and educational opportunities.' Id. at -32(n). Also, 

finding (o) declares that 'New Jersey cannot afford to 

sacrifice public safety and individuals' civil rights by 

continuing its ineffective and wasteful past marijuana 

enforcement policies.' Id. at -32(o). 
6 A-1227-22

[(Emphases added).] 

 Relevant here, Section 31(a) of CREAMMA states "[a] municipality may 

enact ordinances or regulations, not in conflict with [CREAMMA]: (1) 

governing the number of cannabis establishments, distributors, or delivery 

services, as well as the location, manner, and times of operation . . . and (2) 

establishing civil penalties for violation of an ordinance or regulation governing 

[such activity]." N.J.S.A. 24:6I-45(a). CREAMMA also allows municipalities 

to impose a 2% tax on cannabis sales. N.J.S.A. 40:48I-1(a)(1). 

The Highland Park Ordinances 

 On August 17, 2021, the Borough adopted Ordinance 21-2027, which 

amended its municipal code to permit cannabis retailers (and some on-site 

consumption lounges) and delivery services to operate in the Borough, subject 

to operating, licensing, and tax regulations. 

The Planning Board's First Public Hearing 

Before the first ordinance was passed, a public hearing was held on July 

8, 2021, pursuant to N.J.S.A. 40:55D-26, wherein the Borough Planning Board 

reviewed the draft ordinance for consistency with the Borough's master plan. At 

the hearing, the Planning Board's attorney advised the Planning Board and 

members of the public of the ordinance's provisions. The attorney advised that, 
7 A-1227-22

as of CREAMMA's effective date, all marijuana businesses would be permitted 

to operate unless municipalities enacted opt-out or restrictive ordinances. Thus, 

the Planning Board considered whether an ordinance should be enacted, as 

authorized by CREAMMA as a local option, to permit the Borough to limit and 

regulate the marijuana businesses in its borders, or to prohibit them entirely. 

Some members of the public, who apparently2 spoke before the Planning 

Board, expressed concern that the ordinance was not in furtherance of the 

Borough's master plan and contravened federal cannabis law. Having heard 

these concerns, on June 10, 2021, the Planning Board "found that the Ordinance 

. . . is in the best interests of the residents . . . consistent with the Master Plan 

provisions to improve business activities within the Borough of Highland Park." 

The Second Ordinance and the Planning Board's Second Public Hearing 

 Seven months later, on March 15, 2022, the Borough adopted Ordinance 

22-2044 "to clarify the regulations governing medical cannabis dispensaries, . . . 

cannabis retailers, and . . . cannabis delivery services, and to further refine the 

licensing process and the criteria for evaluation of potential cannabis owners 

2

 We have not been furnished with transcripts of the Planning Board hearings, 

but those hearings are described within "Resolutions of Memorialization" 

prepared by the Planning Board for each ordinance, which are included in the 

appellate record. 
8 A-1227-22

within the Borough." 

The Planning Board again had convened before the proposed second 

ordinance was passed to review its consistency with the Borough's master plan. 

On March 10, 2022, a public hearing was held before the Planning Board where 

a representative of the Borough Council explained the ordinance's purpose in 

further regulating marijuana businesses. 

Several members of the public reiterated their objections to the 

ordinance's consistency with the master plan. The objectors also asked the 

Planning Board to take into account "what was perceived to be adverse impacts 

on the community, the character of the community and the potential for harm to 

children in the community of Highland Park." 

The Planning Board found this second ordinance "not inconsistent with 

the Master Plan . . . in that it advances the business purposes recommended in 

the Master Plan and revitalization of Raritan Avenue." Thereafter, the 

governing body adopted it. 

Procedural History of this Litigation 

 On May 24, 2022, the twelve named plaintiffs filed an amended complaint 
9 A-1227-22

in the Law Division alleging defendants3 enacted the ordinances in violation of 

various state and federal laws, specifically (1) N.J.S.A. 40:48-2; (2) the New 

Jersey Civil Rights Act, N.J.S.A. 10:6-2(c) and the federal Civil Rights Act, 42 

U.S.C. § 1983; (3) the Supremacy Clause of the U.S. Constitution; (4) the 

Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 

1962; (5) RICO criminal conspiracy, 18 U.S.C. § 1962(d); (6) RICO civil 

conspiracy, 18 U.S.C. § 1962(c); and (7) the MLUL. Defendants moved to 

dismiss the complaint, asserting it was untimely and otherwise procedurally 

deficient, and also failed to state any claims upon which relief can be granted 

under Rule 4:6-2(e). 

After hearing oral argument on defendants' motion, the trial court 

dismissed the complaint with prejudice, for reasons it placed on the record in an 

oral decision on November 18, 2022.4 This appeal by plaintiffs ensued. 

Among the points asserted in their appellate brief, plaintiffs argue that not 

only are the Borough's ordinances preempted by federal law, but CREAMMA 

3

 The named defendants are the Borough, along with various municipal officials. 

4

 In its decision, the trial court noted that plaintiffs had agreed to voluntarily 

dismiss counts four (alleging RICO violations), five (RICO criminal 

conspiracy), and six (RICO civil conspiracy). 
10 A-1227-22

itself is federally preempted and invalid. When it became apparent to this court 

that plaintiffs had failed to serve the Attorney General with notice of their 

challenge to the validity of the state statute in compliance with Rules 2:5-1(b)(3) 

and 4:28-4(a)(1); we notified the Attorney General of the pendency of the appeal 

and invited his office's participation as amicus curiae. The Attorney General 

accepted the invitation,5 limiting his office's arguments to plaintiffs' preemption 

challenge to CREAMMA. We then received briefs and supplemental briefs from 

the amicus Attorney General and the parties concerning that discrete issue. The 

Attorney General participated in the appellate oral argument. 

II. 

 We first address the trial court's ruling that plaintiffs' complaint 

challenging the Borough's actions is time-barred under Rule 4:69-6(a), the Rule 

governing actions in lieu of prerogative writs, because it was filed more than 

forty-five days after the adoption of the first ordinance. This time bar issue is 

5

 Of procedural note, the Attorney General's acceptance disclosed that Mary A. 

Botteon, the lead plaintiff, and others represented by the same counsel 

representing plaintiffs in the present case had challenged CREAMMA's 

constitutionality in an earlier Law Division action against the State in Mercer 

County (Docket No. MER-L-2293-20). The Attorney General defended that 

matter, which was dismissed by the trial court with prejudice on July 26, 2021. 

Plaintiffs in that case did not appeal. No one is arguing to us that the previous 

dismissal has res judicata or collateral estoppel effects on this case. 
11 A-1227-22

easily dispensed with. For one thing, the complaint was filed on April 29, 2022, 

within forty-five days of the adoption of the second ordinance on March 15, 

2022. The two ordinances are inextricably intertwined, and it would make no 

sense for the court to adjudicate the validity of one without the other. 

 More importantly, this lawsuit manifestly concerns matters of public 

importance that justify an enlargement of the forty-five-day period in the public 

interest under subsection (c) of Rule 4:69-6. See, e.g., Hopewell Valley 

Citizens' Grp., Inc. v. Berwind Prop. Grp. Dev. Co., L.P., 204 N.J. 569, 578 

(2011); Harrison Redevelopment Agency v. DeRose, 398 N.J. Super. 361, 418 

(App. Div. 2008). The continued viability of the ordinances plainly affects 

residents of the Borough (who, among other things, would receive the positive 

fiscal benefit of the 2% in tax receipts generated from the marijuana sales, but 

who also could be affected by what plaintiffs allege are the negative effects of 

dispensary activities). In addition, businesses that may wish to be licensed as 

vendors and customers of the dispensaries are also impacted. We also perceive 

no unreasonable delay in plaintiffs filing suit in April 2022.6

6

 Given our application of the enlargement provision, we need not address 

plaintiffs' argument that the complaint is merely a declaratory judgment action 

that does not have the characteristics of an action in lieu of prerogative writs. 
12 A-1227-22

 We accordingly reverse the trial court's ruling that the complaint is timebarred with respect to the first ordinance. 

III. 

 We now turn to the federal preemption issue that is at the heart of this 

appeal.7 The well-established elements of federal preemption were aptly 

described in detail by our Supreme Court in Hager v. M&K Construction, 246 

N.J. 1, 26-45 (2021), and then reiterated last year by the Court in Matter of 

Altice USA, Inc., 253 N.J. 406, 415 (2023). We summarize them briefly here. 

Under the Supremacy Clause of the United States Constitution, federal 

law preempts state law in several circumstances. Id. at 417 (citing English v. 

7

 As a threshold matter, the amicus briefs of the Attorney General contend the 

plaintiffs in this case lack standing as individual citizens to assert a federal 

preemption claim under the CSA because the CSA does not contain a private 

right of action. Several courts in other jurisdictions have agreed, holding the 

CSA creates no private cause of action to enforce its terms. See, e.g., Safe 

Streets Alliance v. Hickenlooper, 859 F.3d 865, 898-904 (10th Cir. 2017); West 

v. Lynch, 845 F.3d 1228, 1235-37 (D.C. Cir. 2017). This lack-of-standing 

argument was not raised below in the trial court by defendants, nor was it ruled 

upon by the motion judge. As a general principle, we are disinclined to address 

arguments by amici that were not litigated by the parties. Bethlehem Twp. Bd. 

of Educ. v. Bethlehem Twp. Educ. Ass'n, 91 N.J. 38, 48-49 (1982). The 

Attorney General urges us to nevertheless reach the lack-of-standing argument 

because, as we noted above, plaintiffs failed to serve notice upon the Attorney 

General in the trial court of their preemption claim attacking the validity of 

CREAMMA. Because our forthcoming analysis will show that plaintiffs' 

preemption argument lacks merit, we shall assume for sake of discussion, 

without deciding, that plaintiffs have standing to assert the argument. 
13 A-1227-22

Gen. Elec. Co., 496 U.S. 72, 78 (1990)). They are categorically divided between 

"express preemption" and "implied preemption." Hager, 246 N.J. at 28. Express 

preemption "is found when Congress explicitly preempts state law." Altice, 253 

N.J. at 417. If the text of a preemption clause has more than one plausible 

reading, however, "courts ordinarily 'accept the reading that disfavors preemption.'" Altria Grp., Inc. v. Good, 555 U.S. 70, 77 (2008) (quoting Bates v. 

Dow Agrosciences LLC, 544 U.S. 431, 449 (2005)). 

"In the alternative, there are two forms of implied preemption: field and 

conflict." Hager, 246 N.J. at 28. "'Field preemption applies "where the scheme 

of federal regulation is 'so pervasive as to make reasonable the inference that 

Congress left no room for the States to supplement it.'"'" Ibid. (quoting In re 

Reglan Litig., 226 N.J. 315, 328 (2016) (quoting Gade v. Nat'l Solid Wastes 

Mgmt. Ass'n, 505 U.S. 88, 98 (1992))). 

Conflict preemption, in turn, exists when either (1) "'compliance with both 

federal and state regulations is a physical impossibility'" or (2) state law "'stands 

as an obstacle to the accomplishment and execution of the full purposes and 

objectives of Congress.'" Altice, 253 N.J. at 417 (quoting Reglan, 226 N.J. at 

329 (internal citation omitted) (quoting Gade, 505 U.S. at 98)). 
14 A-1227-22

In Hager, our Supreme Court held that express and field preemption were 

not applicable to CREAMMA "because the CSA explicitly leaves room for state 

law to operate[.]" 246 N.J. at 29. The Court supported that determination by 

quoting the following language from the CSA: 

No provision of this subchapter shall be construed as 

indicating an intent on the part of the Congress to

occupy the field in which that provision operates, 

including criminal penalties, to the exclusion of any 

State law on the same subject matter which would 

otherwise be within the authority of the State, unless 

there is a positive conflict between that provision of this 

subchapter and that State law so that the two cannot 

consistently stand together. 

[Ibid. (quoting 21 U.S.C. § 903).] 

The Court in Hager accordingly focused on conflict preemption. Ibid. In 

that regard, the Court underscored that conflict preemption "requires an actual—

rather than hypothetical or speculative—conflict between federal and state law." 

Ibid. "'[P]re-emption is not to be lightly presumed.'" Ibid. (quoting Franklin 

Tower One, LLC v. N.M., 157 N.J. 602, 615 (1999)). The case for preemption 

is "'particularly weak where Congress has indicated its awareness of the 

operation of state law in a field of federal interest, and has nonetheless decided 

to . . . tolerate whatever tension there [is] between them.'" Id. at 30 (quoting 
15 A-1227-22

Wyeth v. Levine, 555 U.S. 575 (2009) (alteration in original) (quoting Bonito 

Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 166-67 (1989))). 

The Court in Hager then presented an extensive analysis of whether the 

CSA impliedly preempts CREAMMA through conflict preemption. It 

specifically analyzed the two varieties of conflict preemption: i.e., impossibility 

("where it is 'impossible for a private party to comply with both state and federal 

requirements'"), or obstacle ("when state law 'stands as an obstacle to the 

accomplishment and execution of the full purposes and objectives of 

Congress.'"). Id. at 29 (quoting PLIVA, Inc. v. Mensing, 564 U.S. 604, 618 

(2011) (quoting Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995))). The 

Court concluded that neither of those forms of conflict preemption applied to 

CREAMMA. Id. at 38-42.

We incorporate by reference the Court's thorough discussion of the 

preemption analysis in Hager tracing the history, purposes, and enforcement 

status of the CSA, and its detailed "deciphering [of] congressional intent." Id. 

at 30-42. We need not repeat that analysis here, except to highlight a few central 

points. 

As Hager noted, marijuana was classified as a "Schedule I" substance at 

the time of the CSA's enactment in 1970, including it with substances with "a 
16 A-1227-22

high potential for abuse." Id. at 31. However, "guidance from senior personnel 

in the Department of Justice ("DOJ") to the offices of the United States 

Attorneys issued over the past decade or so has, at times, deprioritized—but not 

prohibited—federal prosecution of marijuana activities that are legal under state 

law." Id. at 32. Hager cited a series of memoranda from the DOJ reflecting that 

enforcement approach, which has vacillated over administrations. Id. at 32-33. 

As characterized by Hager, the Executive Branch "has muddied the waters 

between state marijuana laws and federal enforcement." Id. at 33. Congress, 

meanwhile, has periodically included language in annual appropriations riders 

that has prohibited the DOJ from using allocated funds to prosecute conduct that 

is legal under the medical marijuana laws of certain states, including New 

Jersey. Id. at 33-34.

Plaintiffs argue the Court's partial reliance in Hager on Congressional 

appropriations riders is misplaced because (1) the riders have pertained to 

medical marijuana, not, as here, recreational marijuana; and (2) no such riders 

exist within the annual federal appropriations enactments at the present time. 

The Attorney General does not quibble with those distinctions, but argues there 

remain sufficient grounds to hold CREAMMA is not preempted. The Attorney 

General maintains that neither of the two forms of conflict preemption—either 
17 A-1227-22

impossibility or obstacle—apply to this case. The Borough joins in that 

position.

We agree with the Attorney General and the Borough that it is not 

"impossible" for the CSA and CREAMMA to be in effect simultaneously, and 

that CREAMMA does not pose an impermissible "obstacle" to enforcement of 

the CSA if federal officials chose to prosecute New Jerseyans more aggressively 

for violations of federal marijuana laws. 

The CSA expressly preserves the ability of state law to operate, "unless 

there is a positive conflict between [the CSA] and that [s]tate law so that the two 

cannot consistently stand together." Hager, 246 N.J. at 29 (21 U.S.C. § 903). 

CREAMMA, meanwhile, contains what Hager characterized as "express 

deferential references to federal law," which "recognize that state law may not 

permit what federal law forbids." Id. at 28 (citing sections 47 and 48 of 

CREAMMA). CREAMMA exclusively regulates liability under state law for 

marijuana use, in furtherance of the state constitutional amendment passed by 

the voters in November 2020. See N.J. Const. art. IV, § 7, ¶ 13. CREAMMA 

provides no defense to federal prosecution of conduct that may be charged as 

violative of federal law. 
18 A-1227-22

It is not impossible for New Jerseyans to comply with the CSA after the 

enactment of CREAMMA. CREAMMA does not require any person to possess, 

purchase, or use marijuana. The statute does not require any business to sell 

marijuana, or any municipality to adopt, as here, an ordinance to allow 

marijuana dispensaries within its borders. The residents and marijuana 

businesses of this state act at the risk that their activities might be prosecuted by 

federal authorities. Thus far, federal authorities have not changed their CSA 

enforcement policies, even though, as the Court recognized in Hager, they might 

alter course at any time. Hager, 246 N.J. at 42 (noting the "temporal nature" of 

federal marijuana policies). 

For similar reasons, we also do not regard CREAMMA as an "obstacle" 

to federal enforcement of the CSA. Federal authorities are not bound by state 

law. We are cognizant that, as Hager mentioned, CREAMMA disallows state 

law enforcement from cooperating with federal authorities in enforcing the CSA. 

Id. at 27. But such a provision may be acceptable under "anti-commandeering" 

principles, an issue that is not squarely before us here. See Printz v. U.S., 521 

U.S. 898, 935 (1997) (explaining such principles prevent the federal government 

from requiring state legislatures to enact laws to further federal policies or state 

officials to enforce federal laws). Moreover, as Hager notes, an obstacle 
19 A-1227-22

analysis requires a court to consider "the relationship between state and federal 

laws as they are interpreted and applied, not merely as they are written." 246 

N.J. at 30 (quoting R.F. v. Abbott Labs., 162 N.J. 596, 618 (2000) (quoting Jones 

v. Rath Packing Co., 430 U.S. 519, 526 (2000))) (emphasis added). At present, 

no actual impediments to federal enforcement have been evidenced in this case, 

one in which the State's own highest law enforcement officer is participating 

and whose office would presumably have an awareness of such clashes. It is no 

secret that New Jerseyans voted to adopt the 2020 constitutional amendment and 

that CREAMMA was enacted in 2021 to effectuate those citizen-approved 

policies, despite continued federal prosecution of persons in this state who 

violate the federal drug laws. The federal and state laws can and continue to 

coexist. 

Other courts have reached similar conclusions about the coexistence of 

the CSA with state laws allowing and regulating the usage of medical or 

recreational marijuana. For example, in In re State Question No. 807, Initiative 

Petition No. 423, 468 P.3d 383, 391 (Okla. 2020), the Oklahoma Supreme Court 

held that Oklahoma's proposed state constitutional amendment allowing, 

regulating, and taxing the use of recreational marijuana would not be preempted 

by the CSA. Similarly, the Supreme Court of New Hampshire has ruled that its 
20 A-1227-22

state laws concerning reimbursement of the costs of therapeutic marijuana did 

not conflict with the CSA, under either impossibility or obstacle preemption. 

Appeal of Panaggio, 260 A.3d 825, 832-37 (N.H. 2021). 

Most recently, as another example, a New York state court rejected a 

conflict preemption challenge to its state's cannabis statute regulating marijuana 

dispensaries and on-site consumption businesses. Buenos Hill Inc. v. Saratoga 

Springs, 206 N.Y.S.3d 902 (N.Y. App. Div. 2024). As the New York court 

observed, "Congress' decision to not interfere with state recreational and 

medical marijuana laws, coupled with its awareness of the issues, is powerful 

evidence that Congress did not intend for the CSA8 to be the exclusive means of 

addressing the problems associated with drug abuse and safety." Id. at __. We 

are mindful that some other state court opinions have adopted contrary 

approaches, but we find them less persuasive than the above cases we have cited 

and other cases cited to us that have found no preemption.9

8

 For completeness, we note that plaintiffs' other assorted preemption arguments 

claiming the violation of other federal provisions apart from the CSA, such as 

Food and Drug Administration regulations—even assuming they have standing 

to bring them—have not been substantiated. 

 

9

 The court in Buenos Hill cites a plethora of opinions from across the nation 

addressing the conflict preemption subject, as of March 2024. Id. at __, n. 5. 

We are unpersuaded in particular by the Minnesota Supreme Court majority 
21 A-1227-22

For these many reasons, CREAMMA is not federally preempted by the 

CSA. Because the Borough's ordinances are authorized by CREAMMA, they 

likewise are not preempted. 

[At the direction of the court, the published version 

of this opinion omits Part IV, addressing the trial

court's dismissal of plaintiffs' state-law claims. R.

1:36-3.] 

V.

We therefore remand the case for further proceedings consistent with this 

opinion. We do not retain jurisdiction. The trial court shall convene a case 

management conference within twenty days. 

Affirmed in part, vacated in part. 

opinion in Musta v. Mendota Heights Dental Center, 965 N.W.2d 312 (Minn. 

2021), a decision stressed here by plaintiffs, which held that the CSA preempted 

that state's workers' compensation laws mandating reimbursement of employee 

medical cannabis purchases. Unlike the state laws challenged in Musta, 

CREAMMA, as we noted above, does not compel a party to engage in 

affirmative conduct.