People v. O'Neal, Docket No. 58315

• Citation: 333 N.W.2d 56,122 Mich.App. 370
• Decision Date: 06 May 1983
• Docket Number: Docket No. 58315
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary G. O'NEAL, Defendant-Appellant. 122 Mich.App. 370, 333 N.W.2d 56
• Court: Court of Appeal of Michigan (US)

Page 56

333 N.W.2d 56

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary G. O'NEAL, Defendant-Appellant.

Docket No. 58315.

122 Mich.App. 370, 333 N.W.2d 56

Court of Appeals of Michigan.

Submitted Sept. 14, 1982.

Decided Jan. 10, 1983.

Released for Publication May 6, 1983.

[122 MICHAPP 371] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Edward J. Grant, Pros. Atty., and Brian E. Thiede, Chief Appellate Asst. Pros. Atty., for the People.

State Appellate Defender by Karla Kendall, Detroit, for defendant-appellant.

Before DANHOF, C.J., and CAVANAGH and HOLBROOK, JJ.

[122 MICHAPP 372] DANHOF, Chief Judge.

Defendant pled guilty to possession of a controlled substance, pentazocine, in violation of M.C.L. Sec. 333.7403(2)(b); M.S.A. Sec. 14.15(7403)(2)(b), on January 16, 1981. He was sentenced to serve a term of from one to two years in prison. Defendant appeals his conviction as of right.

Defendant, relying on the decision of another panel of this Court in People v. Turmon, 117 Mich.App. 345, 323 N.W.2d 698 (1982), claims that his conviction must be reversed because the Legislature has never declared possession of pentazocine to be a crime.

The Controlled Substances provision of the Public Health Code M.C.L. Sec. 333.7101 et seq.; M.S.A. Sec. 14.15(7101) et seq., do not contain an exhaustive list of the substances which are controlled thereby. On the contrary, the code purports to grant authority to the State Board of Pharmacy (Board) to add to, to delete from, or to reschedule all substances listed in the code. M.C.L. Sec. 333.7201; M.S.A. Sec. 14.15(7201). In 1979, the Board classified pentazocine as a schedule 3 controlled substance. 1979 AC, R 338.3120(2).

In a split decision, Turmon, supra, held that the statutory provision granting power to the Board of Pharmacy to classify controlled substances constituted an unlawful delegation of legislative power to an administrative agency. In so ruling, the Court noted that another panel of this Court had earlier reached the opposite conclusion. People v. Uriel, 76 Mich.App. 102, 255 N.W.2d 788 (1977). A majority of the members of the Turmon Court decided that the Uriel Court had reached the wrong conclusion.

It has long been established that the Legislature is without authority to delegate its legislative powers to an administrative agency. See King v. [122 MICHAPP 373] Concordia Fire Ins. Co., 140 Mich. 258, 103 N.W. 616 (1905); Michigan C.R. Co. v. Michigan R.R. Comm., 160 Mich. 355, 125 N.W. 549 (1910). The reason for this prohibition is grounded in two distinct concepts. First, the Constitutional requirement concerning the Separation of Powers precludes the Legislature from delegating its power to make law. Const.1963, art. 3, Sec. 2. Secondly, Due Process requires that the exercise of legislatively conferred powers be carried out in a manner which is neither arbitrary nor capricious. Westervelt v. Natural Resources Comm., 402 Mich. 412, 263 N.W.2d 564 (1978); Osius v. City of St. Clair Shores, 344 Mich. 693, 75 N.W.2d 25 (1956). Despite the fact that the "delegation" doctrine has as its source two distinct constitutional considerations, the focus for determining whether either is violated requires an examination of the standards the Legislature has employed to govern an agency's exercise of the power which it has been granted. Westervelt, supra.

In deciding the issue of whether the standards are sufficiently definite to satisfy the constitutional requirement of the Separation of Powers, we are governed by the test announced in Dep't. of Natural Resources v. Seaman, 396 Mich. 299, 309, 240 N.W.2d 206 (1976):

"While no hard and fast rule exists for determining whether a given statute has provided sufficient standards, a number of guiding principles have evolved in Michigan jurisprudence to assist in making a determination in this case.

"First, the act in question must be read as a whole; the provision in question should not be isolated but must be construed with reference to the entire act. Argo Oil Corp v Atwood, [274 Mich 47, 53; 264 NW 285 (1935) ].

"Second, the standard should be 'as reasonably precise[122 MICHAPP 374] as the subject matter requires or permits'. Osius v St. Clair Shores, 344 Mich 693, 698; 75 NW2d 25; 58 ALR2d 1079 (1956).

"The preciseness of the standard will vary with the complexity and/or the degree to which subject regulated will require constantly changing regulation. The 'various' and 'varying' detail associated with managing the natural resources has led to recognition by the courts that it is impractical for the Legislature to provide specific regulations and that this function must be performed by the designated administrative officials. People v Soule, 238 Mich 130, 140; 213 NW 195 (1927). See United States v Grimaud, 220 US 506; 31 S Ct 480; 55 L Ed 563 (1910).

"Third, if possible the statute must be construed in such a way as to 'render it valid, not invalid' as conferring 'administrative, not legislative' power and as vesting 'discretionary, not arbitrary, authority'. Argo Oil Corp v Atwood, supra [274 Mich. at] 53 ."

After examining the standards contained in this Act, we cannot agree with the Turmon Court's conclusion that the Legislature has left to the State Board of Pharmacy the legislative task of defining what constitutes a crime. The standards contained in the statute include Sec. 7202, ¹ which provides:

"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.

[122 MICHAPP 375] "(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."

Section 7203 ² provides:

"(1) After considering the factors enumerated in section 7202, the administrator shall make findings with respect thereto and promulgate a rule controlling the substance if the administrator finds the substance has a potential for abuse.

"(2) If the administrator designates a substance as an immediate precursor, a substance which is a precursor of the controlled precursor is not subject to control solely because it is a precursor of the controlled precursor."

Sections 7206 ³ and 7208 ⁴ then provide:

"Sec. 7206. (1) A 7 member scientific advisory commission is created to serve as a consultative and advisory body to the administrator in all matters relating to the classification, reclassification, addition to, or deletion from, 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 composed of 2 physicians to be appointed by the director of public health; 2 pharmacists to be appointed by the director of licensing and regulation; the chief of the crime detection laboratory of the department of public health; the director of mental health or his or her designee; and the director of the department of state police or his or her designee. The physician and pharmacist appointments shall be for 2-year terms.

"(2) The administrator shall receive the recommendations[122 MICHAPP 376] of the scientific advisory commission pursuant to administration over the controlled substances for inclusion in or exclusion from schedules 1 to 5, especially in the implementation of scheduled substances changes as provided in section 7201, except that the administrator is not bound by recommendations of the scientific advisory commission.

* * *

"Sec. 7208. (1) Authority to control under this article, does not extend to distilled spirits, wine, malt beverages, or tobacco.

"(2) The administrator shall exclude a nonnarcotic substance from a schedule if the substance, under the federal food, drug, and cosmetic act of 1938, 21 U.S.C. 301 to 392, and the laws of this state, may be lawfully sold over the counter without a prescription." See also M.C.L. Sec. 333.7204; M.S.A. Sec. 14.15(7204); M.C.L. Sec. 333.7227; M.S.A. Sec. 14.15(7227); M.C.L. Sec. 333.7229; M.S.A. Sec. 14.15(7229).

Finally, the Act lists five schedules of substances which the Legislature has determined to be in need of control and provides additional standards concerning the schedules into which additional substances are to be placed. ⁵

In our opinion, these sections, read together, provide the Board with standards which are as reasonably precise as the subject matter dictates. It is readily apparent that decisions relating to the dangers associated with a particular drug require a great deal of administrative expertise, expertise which individual legislators cannot be expected to possess. Furthermore, in view of the constantly changing nature of the subject matter, it is impractical to expect the Legislature to continuously revise the list of controlled substances. These lists must be supplied by designated administrative [122 MICHAPP 377] officials. See Dep't. of Natural Resources v. Seaman, supra, 396 Mich. at 309, 240 N.W.2d 206.

We do not find persuasive the conclusion stated in Turmon, supra, that the delegation is per se invalid merely because the Controlled Substance provisions of the health code are penal in nature. Many statutes which grant administrative authority to a regulatory agency, statutes which have been upheld by the Courts in the face of Separation of Powers challenges, have involved penal provisions. See Westervelt, supra; People v. Soule, supra; Automotive Service Councils of Michigan v. Secretary of State, 82 Mich.App. 574, 267 N.W.2d 698 (1978), app. dis., 439 U.S. 973, 99 S.Ct. 554, 58 L.Ed.2d 645 (1978)....