People v. Turmon, Docket No. 55893

• Court: Court of Appeal of Michigan (US)
• Citation: 323 N.W.2d 698,117 Mich.App. 345
• Docket Number: Docket No. 55893
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward R. TURMON, Defendant-Appellant. 117 Mich.App. 345, 323 N.W.2d 698
• Decision Date: 01 September 1982

Page 698

323 N.W.2d 698

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward R. TURMON, Defendant-Appellant.

Docket No. 55893.

117 Mich.App. 345, 323 N.W.2d 698

Court of Appeals of Michigan.

Submitted March 2, 1982.

Decided June 22, 1982.

Released for Publication Sept. 1, 1982.

[117 MICHAPP 347] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., Appeals, and Janice M. Joyce, Asst. Pros. Atty., for the People.

Sheila N. Robertson, Asst. State Appellate Defender, for defendant-appellant on appeal.

Before MAHER, P. J., and BEASLEY and MARUTIAK, ^* JJ.

MAHER, Presiding 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), and was sentenced to two years probation. He appeals as of right.

[117 MICHAPP 348] 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.

M.C.L. Sec. 333.7215; M.S.A. Sec. 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

[117 MICHAPP 349] 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. ¹

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.

[117 MICHAPP 350] The Uriel Court stated that "[t]he majority of jurisdictions which have considered this issue have upheld the statutory scheme", id., 108, 255 N.W.2d 788, and cited a number of cases in support of this proposition. ² 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. ³ 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.

Const.1963, art. 4, Sec. 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[117 MICHAPP 351] 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 the 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 [117 MICHAPP 352] 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 trails 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.)

[117 MICHAPP 353] 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...