People v. Uriel

• Decision Date: 06 June 1977
• Docket Number: Docket Nos. 27202,27203
• Citation: 76 Mich.App. 102,255 N.W.2d 788
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. David URIEL, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Mark NELSON, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 788

255 N.W.2d 788

76 Mich.App. 102

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. David URIEL, Defendant-Appellee.

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Mark NELSON, Defendant-Appellee.

Docket Nos. 27202, 27203.

Court of Appeals of Michigan.

June 6, 1977.

Released for Publication July 21, 1977.

Richard P. Zipser, Southfield, for defendants-appellees.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief Appellate Lawyer, Thomas S. Richards, Asst. Pros. Atty., for plaintiff-appellant.

Before QUINN, P. J., and BRONSON and KELLY, JJ.

KELLY, Judge.

Defendants were charged with delivery of a controlled substance, M.C.L.A. § 335.341(1)(b); M.S.A. § 18.1070(41)(1)(b) and M.C.L.A. § 335.316; M.S.A. § 18.1070(16). Following the preliminary examination defendants moved to dismiss on the ground that M.C.L.A. § 335.311; M.S.A. § 18.1070(11) constituted an unlawful delegation of legislative power to an administrative agency. The district court agreed with defendants' assertion, but considered defendants' motion intertwined with the Administrative Procedures Act, M.C.L.A. § 24.201, et seq.; M.S.A. § 3.560(101), et seq. and as such believed exclusive jurisdiction was vested in the circuit court. It thus certified the motion to Oakland County Circuit Court. In the circuit court, defendants' motion to dismiss was renewed and granted by order dated January 6, 1976. The people appeal from this dismissal.

Defendants were charged with delivery of methaqualone. This drug, although not specified as a controlled substance in Schedule 2, M.C.L.A. § 335.316; M.S.A. § 18.1070(16), was added as a schedule 2 controlled substance pursuant to M.C.L.A. § 335.315; M.S.A. § 18.1070(15). This section states:

"The administrator shall place a substance in schedule 2 if it finds all of the following:

(a) The substance has high potential for abuse.

(b) The substance has currently accepted medical use in treatment in the United States, or currently accepted medical use with severe restrictions.

(c) The abuse of the substance may lead to severe psychic or physical dependence.

The administrator is the State Board of Pharmacy, M.C.L.A. § 335.303(2); M.S.A. § 18.1070(3)(2), which designated methaqualone as a schedule 2 depressant. 1974 AACS, R 338.3119, 1973 AACS, R 338.3119.

Further, M.C.L.A. § 335.311(1); M.S.A. § 18.1070(11)(1) of the Controlled Substances Act, M.C.L.A. § 335.301, et seq.; M.S.A. § 18.1070(1) et seq., allows the administrator to add, delete or reschedule substances. It reads in relevant part as follows regarding the standards to be applied:

"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.

"(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 chapter." M.C.L.A. § 335.311; M.S.A. § 18.1070(11).

The issue is whether the provisions of the Controlled Substances Act that allow the State Board of Pharmacy to add controlled substances to the schedules of proscribed substances constitute an unlawful delegation of legislative power to an administrative agency. Both the district court and the circuit court found an unlawful delegation of legislative power. This issue appears to be one of first impression in this State.

In Department of Natural Resources v. Seaman, 396 Mich. 299, 308-309, 240 N.W.2d 206, 210 (1976), the Court set forth the following regarding a claim that a statute was an unlawful delegation of legislative power:

"The rule with regard to delegation was simply and aptly stated in the leading case of Locke's Appeal, 72 Pa. 491, 498-499 (1873):

" 'The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government.'

"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, supra, 53 (274 Mich. 47, 52,) 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 A.L.R.2d 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 N.W. 195 (1927). See United States v. Grimaud, 220 U.S. 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. 53, 264 N.W. 285." (footnotes omitted).

We apply Seaman, supra, to the present case. Reading the Controlled Substances Act as a whole, we find the standards provided to the Board of Pharmacy "as reasonably precise as the subject matter requires or permits". The act contains five schedules listing various controlled substances and provides the board with specific grounds for listing a substance in a particular schedule. For example, if the board finds that a substance has (a) a high potential for abuse, and (b) has no accepted medical use in treatment in the United States or lacks safety for use in treatment under medical supervision, the board is required to place that substance in Schedule 1. M.C.L.A. § 335.313; M.S.A. § 18.1070(13). M.C.L.A. § 338.1102; M.S.A. § 14.757(2) provides that the Board of Pharmacy shall consist of seven members, six of which shall be registered pharmacists licensed in the state for at least five years, actively engaged in the practice of pharmacy and graduates of a recognized college of pharmacy and the seventh shall be a representative of the general public. Further, M.C.L.A. § 335.311(5); M.S.A. § 18.1070(11)(5) of the act establishes "a 6-member scientific advisory commission to serve as a consultative and advising body to the administrator in all matters relating to the classification, reclassification, addition to or deletion from, of 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 made up of two physicians to be appointed by the director of the department of public health; two pharmacists to be appointed by the director of the department of licensing and regulation; the chief of the crime detection laboratory of the department of public health, and the director of the department of state police or his designee."

The board is not without other sufficient guidelines. M.C.L.A. § 335.311(1), provides the board with various factors which are required to be considered by the board in making a determination regarding a substance and in each particular schedule the Legislature has listed specific substances which the board can use as a guide in listing a substance. ¹

We are mindful that the Controlled Substances Act must, if possible, be construed in such a way...