People v. Schmidt

• Decision Date: 18 October 1978
• Docket Number: 78-1213,Docket Nos. 78-319
• Citation: 86 Mich.App. 574,272 N.W.2d 732
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Allen Frederick SCHMIDT, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 732

272 N.W.2d 732

86 Mich.App. 574

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Allen Frederick SCHMIDT, Defendant-Appellant.

Docket Nos. 78-319, 78-1213.

Court of Appeals of Michigan.

Oct. 18, 1978.DL Rehearing Denied Nov. 22, 1978.

Released for Publication Jan. 3, 1979.

Gray & Taylor, P.C. by Timothy J. Taylor, Mount Pleasant, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Joseph T. Barberi, Pros. Atty., Keith D. Roberts, Pros. Attys. App. Service, Lansing, for plaintiff-appellee.

Before D. E. HOLBROOK, Jr., P. J., and T. M. BURNS and VanVALKENBURG, ^* JJ.

T. M. BURNS, Judge.

Defendant was charged in two separate informations with delivery of marijuana, M.C.L. § 335.341(1)(c); M.S.A. § 18.1070(41)(1)(c), on two specific dates in 1975. He moved to quash each information, claiming the Controlled Substances Act, ¹ insofar as related to marijuana, was unconstitutional. The trial court denied the motion, after a hearing, on the basis of this Court's decision in People v. Alexander, 56 Mich.App. 400, 223 N.W.2d 750 (1974). Defendant then entered bargained pleas of guilty to two counts of possession of marijuana, M.C.L. § 335.341(4)(d); M.S.A. § 18.1070(41)(4)(d), in exchange for dismissal of the delivery counts.

Defendant renews his constitutional attack on the statute in this appeal. The prosecution argues that the issue has not been preserved because defendant pled guilty. We disagree. A plea of guilty does not waive the right to contest whether a statute upon which the prosecution is based is constitutional. People v. Johnson, 396 Mich. 424, 440, 442, 240 N.W.2d 729 (1976). We may, therefore properly consider whether the Legislature's decision to classify marijuana as a controlled substance or the Legislature's decision to place marijuana in Schedule 1 resulted in a deprivation of defendant's rights to equal protection of the law. ²

The Michigan Controlled Substances Act of 1971 is based on the uniform controlled substance act approved by the National Conference of Commissioners on Uniform State Laws in 1970. See generally, 9 ULA, Matrimonial, Family & Health Laws, 145. The uniform act in turn relied largely upon the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C.A. § 801, Et seq.

The uniform act has been adopted, with some alterations, by 43 states, Puerto Rico and the Virgin Islands. 9 ULA, 1974-1977 Supplementary Pamphlet, 47. The act creates five schedules of substances which are considered harmful or have a potential for causing harm, lays out the criteria for adding substances to the schedules or changing the classification of a substance currently in a schedule, creates a regulatory scheme to prevent illicit drug diversion from the proper channels of commerce and provides penalties for violation of the act.

Defendant, by his motion to quash and this appeal, challenges the classification scheme of the act as it relates to marijuana.

Much of defendant's brief is devoted to the lack of administrative action in classifying marijuana as a Schedule 1 substance, M.C.L. § 335.314(c); M.S.A. § 18.1070(14)(c), and the lack of administrative review to determine whether marijuana should remain in Schedule 1. We perceive this challenge to be misdirected. Marijuana was placed in Schedule 1 by the Legislature when it adopted the act. 1971 P.A. 196. We therefore, are not reviewing administrative action, but legislative action. If the scheduling of marijuana denied equal protection, it is because of legislative action. We review defendant's claim from that perspective.

As noted above, defendant bases his challenge to the legislative decision to place marijuana in Schedule 1 and the decision to control marijuana at all on the equal protection clause. In People v. Alexander, supra, a different panel faced the same challenge to the same legislative classification. Relying primarily on United States v. Kiffer, 477 F.2d 349 (C.A.2, 1973), the Court applied the traditional equal protection test ³ and concluded that the legislation was not a violation of this constitutional guarantee. Defendant asks that we reexamine that decision in light of subsequent legal and scientific developments.

Defendant contends that the applicable equal protection standard should not be the "traditional" equal protection review used by the Alexander Panel, but the "substantial-relation-to-the-object" test used by Justice Levin in Manistee Bank & Trust Co. v. McGowan, 394 Mich. 655, 232 N.W.2d 636 (1975). ⁴ Application of the Manistee Bank equal protection test is dependent on two factors: the legislation must carve out a discrete exception to a general rule (such as requiring a showing of gross negligence by a guest passenger to recover for loss or injury from his host, while all others recover on a showing of mere negligence) and the legislation must have remained in force for a sufficiently long time so that it may no longer be considered experimental. 394 Mich. at 671, 232 N.W.2d 636.

We do not find defendant's arguments on these points persuasive. The legislative decision to place controls on marijuana, from among the galaxy of substances, does not compare with the legislative decision to single out guest passengers for special treatment in recovering for a loss resulting from an automobile accident.

We conclude that the traditional equal protection test must be applied. Since defendant does not claim that any fundamental right is involved, the burden is on defendant (the person attacking the classification) to demonstrate that the legislative decision to control marijuana and the legislative decision to place it in Schedule 1 lacked a reasonable basis, I. e., that the decision was essentially arbitrary. Forest v. Parmalee, 402 Mich. 348, 356-357, 262 N.W.2d 653 (1978).

Defendant presented testimony of experts below and has asked that we take judicial notice of other scientific data which he claims demonstrates that marijuana is a relatively harmless substance and, therefore, that the Legislature acted arbitrarily in controlling the substance and in placing it in Schedule 1.

The testimony in this case below would not be sufficient to declare the statute unconstitutional. Defendant's witnesses recognized the split in medical opinion and expressed the belief that much is still to be learned in this area. Divided scientific opinion is not a firm enough basis upon which to declare a statute unconstitutional.

Assuming that this Court could be expected to cull the scientific journals and other material on its own, the result contended by defendant would not be compelled from that search. Other courts examining this question have concluded that at this point in time there is no uniform scientific opinion and, therefore, the respective legislative bodies did not act arbitrarily in deciding to control marijuana. ⁵ See, E. g, State v. Mitchell, 563 S.W.2d 18 (Mo.1978); Marcoux v. Attorney General, Mass., 375 N.E.2d 688 (1978); State v. Murphy, 117 Ariz. 57, 570 P.2d 1070 (1977); State v. Infante, 199 Neb. 601, 260 N.W.2d 323 (1977); Ross v. State, Ind.App., 360 N.E.2d 1015 (1977); State v. Rao, 171 Conn. 600, 370 A.2d 1310 (1976) (reversing a lower court determination of unconstitutionality); State v. Leins, 234 N.W.2d 645 (Iowa 1975); Ravin v. State, 537 P.2d 494 (Alaska 1975); Blincoe v. State, 231 Ga. 886, 204 S.E.2d 597 (1974); State v. Donovan, 344 A.2d 401 (Me.1975); State v. O'Bryan, 96 Idaho 548, 531 P.2d 1193 (1975); Kreisher v. State, 303 A.2d 651 (Del.Supr.1973); Gaskin v. State, 490 S.W.2d 521 (Tenn.1973); People v. Demers, 42 A.D.2d 634, 345 N.Y.S.2d 184 (1973); State v. Kaplan, 23 N.C.App. 410, 209 S.E.2d 325 (1974); State v. Tabory, 260 S.C. 355, 196 S.E.2d 111 (1973).

We do not necessarily agree with statements, such as appear in Brantley v. State, 548 P.2d 675 (Okl.Cr.App.1976), that the evidence compels the conclusion that marijuana use is detrimental to public health and safety, or the South Carolina assessment that the issue is obviously without merit. State v. Tabory, supra. Indeed, we agree with the statement that the Legislature could not regulate a harmless drug, Blincoe v. State, supra, but, in light of present day medical and scientific knowledge there is room for doubt. As the court said in State v. Mitchell, supra, it is a "debatable medical issue". Under the circumstances the choice of whether marijuana will be subject to regulation is still one for the Legislature, not the Court. As long as a substantial body of scientific literature continues to conclude that marijuana use is or may be harmful, we cannot say that the Legislature's choice to rely on that evidence is arbitrary.

Nor does the fact that the Legislature has failed to control other substances, such as tobacco, alcohol, or caffeine, require that we find an equal protection violation. The Legislature, because of the role a particular substance plays either economically or socially, could find control feasible in one circumstance and not in another. It is not necessary that the Legislature act on all perceived evils in an area at one time. State v. Mitchell, supra; State v. Leins, supra; State v. Kantner, 53 Haw. 327, 493 P.2d 306 (1972); Commonwealth v. Leis, 355 Mass. 189, 243 N.E.2d 898 (1969).

In determining whether the legislative decision to classify and control some substances while not taking a like action as to others was arbitrary, we must also recognize that significant political roadblocks exist which preclude regulating some substances which are known to be dangerous. Ravin v. State, supra.

In summary, we find that the state of present day medical and scientific knowledge does not allow us to find the Legislature's decision to regulate marijuana to have been, or to be, essentially arbitrary. Scientific research in the area is ongoing. Many of the former "truths" about marijuana have been shown to be myths. But not all questions as to...