People v. Turmon, Docket No. 69776

• Court: Supreme Court of Michigan
• Writing for the Court: WILLIAMS; KAVANAGH
• Citation: 417 Mich. 638,340 N.W.2d 620
• Decision Date: 21 November 1983
• Docket Number: No. 14,J,Docket No. 69776
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Edward R. TURMON, Defendant-Appellee. une Term 1983. Calendar

Page 620

340 N.W.2d 620 417 Mich. 638 PEOPLE of the State of Michigan, Plaintiff-Appellant,
v.
Edward R. TURMON, Defendant-Appellee. Docket No. 69776, June Term 1983.
Calendar No. 14. Supreme Court of Michigan. Argued June 8, 1983.
Decided Nov. 21, 1983.

Page 622

[417 Mich. 641] William L. Cahalan, Pros. Atty., County of Wayne, Edward Reilly Wilson, Deputy Chief, Appellant Asst. Pros. Atty., Civ. and Appeals, Timothy A. Baughman, Principal Atty. Appeals, Janice M. Joyce-Bartee, Asst. Pros. Atty., Detroit, for plaintiff-appellant.

State Appellate Defender Office by Sheila N. Robertson, Asst. Defender, Detroit, for defendant-appellee.

WILLIAMS, Chief Justice.

The issue in this case is whether M.C.L. Sec. 333.7215; M.S.A. Sec. 14.15(7215), which authorizes the Board of Pharmacy to classify controlled substances within legislatively established schedules, is an unlawful delegation of legislative power. Defendant directs a two-pronged attack on the delegation, claiming that the statute: (a) lacks sufficient standards to govern the exercise of the delegated power, and (b) represents an unconstitutional attempt by the Legislature to delegate its exclusive power to create crimes. Additional issues raised are whether the Board of Pharmacy abused its delegated authority and whether defendant was denied proper notice that his conduct was prohibited.

We hold that the Legislature's delegation of authority to add controlled substances to pre-existing schedules in accordance with specific criteria is not an unlawful delegation of power despite the fact that penal consequences flow from violation of the board's rules. The statute contains sufficient standards and safeguards to avoid infirmity under [417 Mich. 642] both separation of powers and due process challenges. Additionally, the board did not abuse its discretion in the promulgation of the rule.

I. FACTS

Under the controlled substances act, M.C.L. Sec. 333.7101 et seq.; M.S.A. Sec. 14.15(7101) et seq., offenses and penalties dealing with regulated drugs are defined in part according to the dangerousness and abuse potential of the substance involved. ¹ After initially classifying a number of substances onto one of five schedules, the Legislature delegated to the Board of Pharmacy the power to "add substances to, or delete or reschedule all substances enumerated in the schedules", M.C.L. Sec. 333.7201; M.S.A. Sec. 14.15(7101), and specifically authorized the board to supplement each schedule with new substances found to meet threshold criteria for that classification. M.C.L. Sec. 333.7211; M.S.A. Sec. 14.15(7211), M.C.L. Sec. 333.7213; M.S.A. Sec. 14.15(7213), M.C.L. Sec. 333.7215; M.S.A. Sec. 14.15(7215), M.C.L. Sec. 333.7217; M.S.A. Sec. 14.15(7217), M.C.L. Sec. 333.7219; M.S.A. Sec. 14.15(7219).

In 1979, the State Board of Pharmacy, pursuant to its authority under M.C.L. Sec. 333.7215; M.S.A. Sec. 14.15(7215), classified pentazocine (also known by its trade name, Talwin) as a schedule 3 controlled substance. This information, embodied as 1979 AC, R 338.3120(2)(a), was first published in the Michigan Administrative Code's Quarterly Supplement (No. 99, p. 92) issued August 14, 1979; it later appeared in the 1979 Michigan Administrative Code. ²

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[417 Mich. 643] On August 20, 1980, defendant was charged with possession with intent to deliver 22 tablets of phenmetrazine and possession with intent to deliver 43 tablets of pentazocine. On September 18, 1980, he pled guilty to the reduced charge of possession of pentazocine. M.C.L. Sec. 333.7403(2)(b); M.S.A. Sec. 14.15(7403)(2)(b). Defendant was sentenced to two years probation.

On appeal as of right, defendant challenged the Legislature's delegation of authority to the Board of Pharmacy to schedule controlled substances and claimed that he was not given notice that possession of pentazocine was a criminal act. Finding both claims meritorious, the Court of Appeals reversed defendant's conviction. People v. Turmon, 117 Mich.App. 345, 323 N.W.2d 698 (1982). ³

On February 18, 1983, this Court granted the Wayne County Prosecutor leave to appeal. 417 Mich. 888 (1983).

II. DELEGATION TO THE BOARD OF PHARMACY

A. Sufficiency of Standards

Defendant challenges the controlled substances act as an unconstitutional delegation of authority [417 Mich. 644] in that the Legislature failed to provide sufficient safeguards to prevent an abuse of legislative power. Defendant asserts that the standards provided in the act are deficient for two reasons. First, the standards fail to avoid a separation of powers problem: the final scheduling decision, he argues, is a policy determination improperly left to the discretion of the administrative agency rather than the Legislature. Second, or perhaps as a corollary to the first allegation, defendant asserts that the unfettered scheduling discretion of the agency is devoid of due process protection. Appellee's Brief, p 26. We disagree with both conclusions.

The criteria this Court has utilized in evaluating legislative standards are set forth 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 N.W. 285 (1935) ].

"Second, the standard should be 'as reasonably precise as the subject matter requires or permits'. Osius v. St Clair Shores, 344 Mich. 693, 698; 75 N.W.2d 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. * * *

"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 [264 N.W. 285]."

[417 Mich. 645] Footnote 7 amplifies the second principle:

"A standard cannot be considered 'as reasonably precise as the subject matter requires or permits' if it does not satisfy due process requirements. See decision in State Highway Comm v Vanderkloot, 392 Mich 159, 169-178; 220 NW2d 416 (1974)."

Application of Principles

The first principle requires that the controlled substances act be read in its entirety

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to determine if the Legislature has provided sufficient guidelines to direct and constrain the agency's exercise of the delegated authority. Guidelines for the Board of Pharmacy are incorporated in appropriate sections of the statute.

The controlled substances act establishes a comprehensive catalog of offenses and penalties relating to controlled substances. M.C.L. Secs. 333.7401-333.7408, 333.7410; M.S.A. Secs. 14.15(7401)-14.15(7408), 14.15(7410). The act also establishes five schedules of controlled substances. These schedules, initially formulated by the Legislature, rank the substances according to potential for abuse. The Legislature prescribed penalties for the controlled substances offenses on the basis of a combination of three factors: the nature of the conduct and the classification and amount of the substance involved.

The act grants the "administrator", defined by M.C.L. Sec. 333.7103; M.S.A. Sec. 14.15(7103) as "the Michigan board of pharmacy or its designated or established authority", the power to modify the original schedules established by the Legislature. M.C.L. Sec. 333.7201; M.S.A. Sec. 14.15(7201). The eight-member board shall consist of six registered pharmacists licensed in the state for at least two years and two representatives of the general public. M.C.L. Sec. 333.17721; M.S.A. Sec. 14.15(17721), M.C.L. Sec. 333.16135; M.S.A. Sec. 14.15(16135).

[417 Mich. 646] Before any substance is added to, deleted from, or reclassified among the schedules, the board must consider each of eight factors:

"(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." M.C.L. Sec. 333.7202; M.S.A. Sec. 14.15(7202).

In order to assist consideration of each factor, the statute also establishes a scientific advisory commission. M.C.L. Sec. 333.7206; M.S.A. Sec. 14.15(7206). The seven-member commission consists of two physicians, two pharmacists, the chief of the crime detection laboratory of the Department of Public Health, the director of mental health, and the director of state police. The board must receive this commission's recommendation, although it is not bound by its suggestions.

With regard to each schedule, the board may include a substance on a specific schedule only after the board finds it to possess certain characteristics. For example, a substance may be placed on schedule 3 only if the board 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.

[417 Mich. 647] "(c) Abuse of the substance may lead to moderate or low physical dependence or high psychological dependence." M.C.L. Sec. 333.7215; M.S.A. Sec. 14.15(7215).

These provisions clearly provide a proper framework to guide and direct agency action. The...