Summary
In Turmon, supra, the Court held that because the substance pentazocine is listed as a controlled substance in an administrative code, rather than in the statute, defendant could not be charged with notice that his conduct was proscribed.
Summary of this case from People v. O'NealOpinion
Docket No. 55893.
Decided June 22, 1982. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Janice M. Joyce, Assistant Prosecuting Attorney, for the people.
Sheila N. Robertson, Assistant State Appellate Defender, for defendant on appeal.
Defendant pled guilty to possession of a controlled substance, pentazocine, in violation of MCL 333.7403 (2)(b); MSA 14.15 (7403)(2)(b), and was sentenced to two years probation. He appeals as of right.
Defendant contends that his conviction must be reversed inasmuch as the Legislature has never declared that possession of pentazocine is a crime. However, pursuant to a legislative grant of authority, the State Board of Pharmacy has classified pentazocine as a controlled substance.
MCL 333.7215; MSA 14.15 (7215) provides:
"The administrator shall place a substance in schedule 3 if it finds all of the following:
"(a) The substance has a potential for abuse less than the substances listed in schedules 1 and 2.
"(b) The substance has currently accepted medical use in treatment in the United States.
"(c) Abuse of the substance may lead to moderate or low physical dependence or high psychological dependence."
In 1979, in accordance with the above procedure, the State Board of Pharmacy classified pentazocine as a schedule 3 controlled substance. The board's action found expression in the following regulation:
"R 338.3120. Schedule 3; stimulants; depressants; nalorphine.
"Rule 20. * * *
"(2) Unless specifically excepted or unless listed in another schedule, a material, compound, mixture, or preparation that contains any quantity of the following substances having a depressant effect on the central nervous system, including its salts, isomers (whether optical, position, or geometric), and the salts of such isomers, whenever the existence of such salts, isomers, and the salts of isomers is possible within the specific chemical designation, is included in schedule 3:
"(a) Chlorhexadol Glutethimide Lysergic acid Lysergic acid amide Methyprylon Pentazocine Sulfondiethylmethane Sulfonethylmethane Sulfonmethane"
1979 AC, R 338.3120(2).
In People v Uriel, 76 Mich. App. 102; 255 N.W.2d 788 (1977), a panel of this Court upheld this statutory scheme against a similar challenge. We are convinced, however, that Uriel was incorrectly decided. We believe that the provisions of the controlled substances section of the Public Health Code permitting the State Board of Pharmacy to classify substances as "controlled" amount to an unconstitutional delegation of the Legislature's power to create criminal offenses.
MCL 333.7201— 333.7203, 333.7215; MSA 14.15 (7201)-14.15 (7203), 14.15 (7215).
We find the following scenario repugnant to traditional concepts of democracy: A group of nonelected bureaucrats gets together and makes an essentially unreviewable determination that possession of certain substances should be a crime. Thousands of formerly law-abiding citizens of this state are instantly reclassified as dangerous, contemptible criminals, subject to incarceration for extensive periods of time in the state penitentiary and to all the horrors modern prison life entails: brutality, deprivation, and rape.
We do not address at this time the power of the Legislature to determine that mere possession of certain substances poses a serious enough threat to our society to justify depriving a person of his liberty. This Court must not, however, permit the Legislature to abdicate its solemn responsibility to the citizens of this state by delegating such authority to a mere administrative agency.
The Uriel Court stated that "[t]he majority of jurisdictions which have considered this issue have upheld the statutory scheme", id., 108, and cited a number of cases in support of this proposition. We initially observe that the three cases principally relied upon by the Uriel Court include decisions by two intermediate appellate courts and one by a trial court. On the other hand, our research reveals that the highest courts of at least five states have correctly found such attempted delegation of legislative power unconstitutional. See Howell v State, 300 So.2d 774 (Miss, 1974), State v Gallion, 572 P.2d 683 (Utah, 1977), Sundberg v State, 234 Ga. 482; 216 S.E.2d 332 (1975), State v Rodriguez, 379 So.2d 1084 (La, 1980), and State v Johnson, 84 S.D. 556; 173 N.W.2d 894 (1970). Thus, it is far from clear, as the Uriel Court stated, that its holding represented the majority position; indeed, Uriel may be just as easily said to reflect a backward, minority view.
"See People v Einhorn, 75 Misc.2d 183; 346 N.Y.S.2d 986 (Sup Ct, 1973), State v Lisk, 21 N.C. App. 474; 204 S.E.2d 868 (1974), lv den 285 N.C. 666; 207 S.E.2d 759 (1974), Cassell v State, 55 Ala. App. 502; 317 So.2d 348 (Crim App, 1975). See also White v United States, 395 F.2d 5 (CA 1, 1968), cert den 393 U.S. 928; 89 S Ct 260; 21 L Ed 2d 266 (1968), Iske v United States, 396 F.2d 28 (CA 10, 1968), State v Sargent, 252 Or. 579; 449 P.2d 845 (1969), State v Boyajian, 344 A.2d 410 (Me, 1975). Contra, Howell v State, 300 So.2d 774 (Miss, 1974), Sundberg v State, 234 Ga. 482; 216 S.E.2d 332 (1975)." Uriel, supra, 108, fn 3.
The Uriel panel, however, also cited two federal circuit court opinions and opinions by the highest courts of two states which summarily disposed of this issue.
Const 1963, art 4, § 1 provides that "[t]he legislative power of the State of Michigan is vested in a senate and a house of representatives". It may be conceded that the Legislature may delegate power to an administrative agency to create administrative regulations in the civil arena. The creation of crimes, however, is a peculiarly legislative prerogative. Under the Michigan Constitution, the Legislature may not grant the power to define criminal offenses to an administrative agency.
The Michigan Supreme Court has never sanctioned the creation of crimes by an administrative agency. According to People v Hanrahan, 75 Mich. 611, 619; 42 N.W. 1124 (1889):
"To declare what shall constitute a crime, and how it shall be punished, is an exercise of the sovereign power of a state, and is inherent in the legislative department of the government."
In Senate of Happy Home Clubs of America v Board of Supervisors of Alpena County, 99 Mich. 117, 120; 57 N.W. 1101 (1894), the Supreme Court struck down a disorderly persons statute allowing those accused of drunkenness to be acquitted upon compliance with the rules and regulations of private corporations operating detoxification centers. The Court held:
"This, in effect, permits unofficial persons to prescribe rules which shall acquit persons charged with crime. * * * It is not within the province of the Legislature to delegate to private corporations the power to make laws for the discharge of offenders."
If a nonelected group of bureaucrats may not create regulations permitting particular criminal offenders to go free, surely such a group may not create laws providing for the incarceration of otherwise innocent people.
As we have already noted, a number of state courts have refused to sanction similar statutory schemes. In Rodriguez, supra, 1085, the Supreme Court of Louisiana held:
"It is well settled in Louisiana jurisprudence that the determination and definition of acts which are punishable as crimes are purely legislative functions. * * * Another equally well established rule is that the legislative power to create and define offenses cannot be delegated." (Footnote and citations omitted.)
In Gallion, supra, 688-690, the Supreme Court of Utah stated:
"`The power of the legislature to repeal or amend the penalty to be imposed for crime is not a matter of judicial concern. It is part of the sovereign power of the state, and it is the exclusive right of the legislature to change or amend it; * * *.'
"Thus this court has recognized there are certain essential legislative functions which cannot be transferred to others.
* * *
"There are sound reasons for ruling the definition of a crime and the precise punishment therefor to be essential legislative functions, which cannot be transferred. Criminal trials would be unduly complicated, for the defendant would have the right to challenge the administrative procedure and the findings where a substance has been scheduled or rescheduled. A similar determination by the legislature could not be challenged. The administrative rulings are not statutes and are not incorporated into the code, a person who wishes to abide by the law would have to resort to the permanent register kept by the secretary of state to determine the status of a substance.
"There is a certain peril involved if administrative procedures can be applied to the criminal law. Why couldn't an administrator revise the penalties in Section 76-6-412, according to the consumer price index or a determination that there had been an excessive amount of theft of property valued at less than $100. A determination of the elements of a crime and the appropriate punishment therefor are, under our Constitutional system, judgments, which must be made exclusively by the legislature." (Footnote omitted; emphasis in original.)
Finally, in Howell, supra, 779-781, the Supreme Court of Mississippi stated:
"It is readily apparent that when the State Board of Health shifted amphetamines from Schedule III to Schedule II, the maximum penalty for possession thereof increased. The practical effect of moving a substance from one schedule and placing it in another is to increase or diminish the criminal penalty for violation of the act. It is likewise true that, if substances are added to or deleted from any of the schedules such action makes acts pertaining to the substances so added a crime, and as to substances deleted, abolishes a crime. The result is that the State Board of Health is given the authority to define a crime, and ordain its punishment.
"The exclusive authority of the legislature to define crimes and fix the punishment therefor is without question.
* * *
"We hold that the authority to define crimes and fix the punishment therefor is vested exclusively in the legislature, and it may not delegate that power either expressly or by implication, but must exercise it under Article 4, Section 33 of the Constitution. We further hold that the attempted delegation of power to the State Board of Health is contrary to Article 1, Sections 1 and 2 of the Constitution providing for separation of the powers of the government of the state into three departments. The State Board of Health is an administrative agency and as such is a part of the executive department of the state. When it rescheduled amphetamines from Schedule III to Schedule II, it increased the punishment of Howell in excess of that fixed by the legislature and thereby exercised legislative power. This infringes on the separation of the powers of government and is prohibited."
The dissenting opinion quotes a magazine article in support of the proposition that pentazocine is a drug of a "perilous nature". Be that as it may, the nature of pentazocine is relevant only insofar as it may provide a rational basis for the Legislature to proscribe it.
When the Legislature passes a criminal law, it does so with the recognition that it will be held responsible for its action at the polls. One of the most fundamental tenets of democracy is that the people have the right to vote for those who are invested with the solemn responsibility to decide what conduct poses a serious enough threat to our society to justify depriving a person of his freedom. The Legislature may not avoid this responsibility to the citizens of this state by delegating the power to create criminal offenses to a group of nonelected bureaucrats.
Since the people of the State of Michigan, speaking through their duly elected representatives, have not chosen to define possession of pentazocine as a crime, defendant's conviction of this offense must be reversed.
Defendant also contends that application of the Board of Pharmacy's purported amendment of the controlled substances section of the Public Health Code to defendant would violate the Due Process Clause of the Fourteenth Amendment of the United States Constitution since he was not afforded fair notice of the conduct proscribed. We agree.
As our accumulation of statutes has become more and more prodigious, it has become increasingly difficult for an individual to mold his or her conduct to the requirements of the law. It may be conceded for the sake of argument that one has "fair notice" of every statute printed in the official Compiled Laws of Michigan. However, even if one manages to read and memorize every single word of the compiled laws, one will still be blissfully unaware of the fact that possession of pentazocine is supposed to be a crime. In order to discover the criminal nature of pentazocine, one must wade through a morass of administrative regulations.
We experienced considerable difficulty locating the Board of Pharmacy's purported amendment of the controlled substances section of the Public Health Code. The compiled laws contain no cross-reference to this administrative regulation. We find the notion that our citizens must read the publications of the Board of Pharmacy in order to find out whether or not they are criminals repugnant to our concept of due process of law.
We also observe that the Board of Pharmacy's purported amendment of the controlled substances section of the Public Health Code was not re-enacted and published at length, as is required by Const 1963, art 4, § 25.
Reversed.
P.J. MARUTIAK, J., concurred.
I respectfully dissent. On September 18, 1980, defendant, Edward R. Turmon, pled guilty to possession of a controlled substance, pentazocine, in violation of MCL 333.7403 (2)(b); MSA 14.15 (7403)(2)(b). After being sentenced to two years probation and $200 court costs, he appeals as of right.
Defendant was originally charged in a two-count information with possession with intent to deliver phenmetrazine and possession with intent to deliver pentazocine. As a consequence of a plea-bargain agreement, the prosecutor dismissed the original charges in exchange for defendant's guilty plea to the lesser offense of possession of pentazocine.
On appeal, defendant claims that his conviction must be reversed because the Legislature did not criminalize the possession of pentazocine. Rather, the drug was classified as a controlled substance by the State Board of Pharmacy, which was delegated legislative power by a statutory enactment. Alternatively, defendant contends that, even if the Legislature properly delegated power to the pharmacy board, he was not sufficiently apprised of the criminal nature of his act.
Pentazocine, more commonly known by the brand name Talwin, is a potent analgesic which is equivalent in analgesic effect to codeine. Although not originally classified as a controlled substance in schedule 3 of the controlled substance section of the Public Health Code, pentazocine was added as a schedule 3 controlled substance by the State Board of Pharmacy pursuant to MCL 333.7215; MSA 14.15 (7215), which provides:
Physicians' Desk Reference (36th ed), p 2036 (1982).
MCL 333.7216; MSA 14.15 (7216).
"The administrator shall place a substance in schedule 3 if it finds all of the following:
"(a) The substance has a potential for abuse less than the substances listed in schedules 1 and 2.
"(b) The substance has currently accepted medical use in treatment in the United States.
"(c) Abuse of the substance may lead to moderate or low physical dependence or high psychological dependence."
The Michigan Board of Pharmacy is the administrator referred to in the foregoing statute. This board designated pentazocine as a schedule 3 depressant in 1979 in the following regulation:
MCL 333.7103 (2); MSA 14.15 (7103)(2).
1979 AC, R 338.3120(2).
"Rule 20. * * *
"(2) Unless specifically excepted or unless listed in another schedule, a material, compound, mixture, or preparation that contains any quantity of the following substances having a depressant effect on the central nervous system, including its salts, isomers (whether optical, position, or geometric), and the salts of such isomers, whenever the existence of such salts, isomers, and the salts of isomers is possible within the specific chemical designation, is included in schedule 3:
"(a) Chlorhexadol Glutethimide Lysergic acid Lysergic acid amide Methyprylon Pentazocine Sulfondiethylmethane Sulfonethylmethane Sulfonmethane"
The State Board of Pharmacy is authorized to supplement, delete, or reschedule substances by MCL 333.7202; MSA 14.15 (7202), which provides the following guidelines:
"In making a determination regarding a substance, the administrator shall consider all of the following:
"(a) The actual or relative potential for abuse.
"(b) The scientific evidence of its pharmacological effect, if known.
"(c) The state of current scientific knowledge regarding the substance.
"(d) The history and current pattern of abuse.
"(e) The scope, duration, and significance of abuse.
"(f) The risk to the public health.
"(g) The potential of the substance to produce psychic or physiological dependence liability.
"(h) Whether the substance is an immediate precursor of a substance already controlled under this article."
Defendant claims that the Legislature may not lawfully delegate to the State Board of Pharmacy the power to add proscribed substances, as this constitutes an unlawful delegation of legislative power to an administrative agency.
In People v Uriel, where defendants were charged with delivery of the controlled substance of methaqualone, we upheld the statutory scheme which empowers the State Board of Pharmacy to supplement, delete, or reschedule substances. The Uriel Court stated:
76 Mich. App. 102; 255 N.W.2d 788 (1977).
Id., 106-107.
"We apply Seaman [Dep't of Natural Resources v Seaman, 396 Mich. 299; 240 N.W.2d 206 (1976)] to the present case. Reading the Controlled Substances Act as a whole, we find the standards provided to the Board of Pharmacy `as reasonably precise as the subject matter requires or permits'. The act contains five schedules listing various controlled substances and provides the board with specific grounds for listing a substance in a particular schedule. For example, if the board finds that a substance has (a) a high potential for abuse, and (b) has no accepted medical use in treatment in the United States or lacks safety for use in treatment under medical supervision, the board is required to place that substance in schedule 1. MCL 335.313; MSA 18.1070 (13) [now MCL 333.7211; MSA 14.15 (7211)]. MCL 338.1102; MSA 14.757 (2) [now MCL 333.17721; MSA 14.15 (17721)] provides that the Board of Pharmacy shall consist of seven members, six of which shall be registered pharmacists licensed in the state for at least five years, actively engaged in the practice of pharmacy and graduates of a recognized college of pharmacy and the seventh shall be a representative of the general public. Further, MCL 335.311 (5); MSA 18.1070 (11)(5) [now MCL 333.7206 (1); MSA 14.15 (7206)(1)] of the act establishes `a 6-member scientific advisory commission to serve as a consultative and advising body to the administrator in all matters relating to the classification, reclassification, addition to or deletion from, of all substances presently classified as controlled substances in schedules 1 to 5, or substances not presently controlled or yet to come into being. The scientific advisory commission shall be made up of 2 physicians to be appointed by the director of the department of health; 2 pharmacists to be appointed by the director of the department of licensing and regulation; the chief of the crime detection laboratory of the department of public health, and the director of the department of state police or his designee.'"
A recent article in the official magazine of the United States Food and Drug Administration discussed the perilous nature of Talwin, the brand name of pentazocine:
Hecht. The Saga of T's and Blues, FDA Consumer (March, 1979).
"Talwin mixed with an antihistamine, Pyribenzamine, and injected can produce a `rush' or `high' as good or better than heroin. Pyribenzamine is sold as a blue tablet, hence the street name, T's and Blues. As street supplies of heroin have become scarce, expensive, and of poor quality, addicts have turned to T's and Blues as a cheap and readily available substitute. Euphoria isn't all they are getting for their money, however. Overdoses of Talwin can cause psychotic effects and may result in convulsions, coma, and possibly death. * * *
"Coupled with this evidence was the unfolding story of the abuse of T's and Blues. A DEA pharmacist, appearing before FDA's Controlled Substances Advisory Committee in March 1978, reported on a case in Chicago which clearly established pentazocine as a drug of abuse. City investigators audited records of a local wholesaler and found that 18 pentazocine orders were filled for one pharmacy in a 3-month period. A check of the pharmacist's records found a discrepancy of approximately 1.5 million pentazocine and Pyribenzamine tablets between the amount ordered and the amount used to fill legitimate prescriptions. This represents $5 million at the price addicts were paying on the street. A diversion of this size is possible with uncontrolled drugs, according to DEA, because they are not subject to audits and inventory controls and investigators cannot see sales records except with a court order. Chicago authorities were able to build a case because they suspected a problem existed."
This article is a further indication why the State Board of Pharmacy decided to classify pentazocine as a controlled substance. I would adhere to the ruling in Uriel and hold that the standards delineated by the controlled substances section of the Public Health Code are abundantly clear so as not to constitute an improper delegation of legislative power to the State Board of Pharmacy.
Defendant also contends that he was denied adequate notice that the drug was proscribed. The pharmacy board's classification of pentazocine as a controlled substance is printed in the 1979 Michigan Administrative Code, page 2608, and first appeared in the code's quarterly supplement number 99, page 92, published August 14, 1979. I would find that defendant was not denied fair notice of pentazocine's classification as a class 3 depressant and would vote to affirm.