People v. Schmidt, Docket Nos. 78-319

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

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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.

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[86 Mich.App. 575] 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, [86 Mich.App. 576] 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 [86 Mich.App. 577] 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.

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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[86 Mich.App. 578] 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.

[86 Mich.App. 579] 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...