Sheriff, Clark County v. Luqman

• Decision Date: 22 March 1985
• Docket Number: Nos. 14566,14858,s. 14566
• Citation: 101 Nev. 149,697 P.2d 107
• Parties: SHERIFF, CLARK COUNTY, Appellant, v. Yusuf LUQMAN, aka Joe Clark, Respondent. SHERIFF, CLARK COUNTY, Nevada, Appellant, v. Sharon Kay LINGLE, Respondent.
• Court: Nevada Supreme Court

Page 107

697 P.2d 107

101 Nev. 149

SHERIFF, CLARK COUNTY, Appellant, v. Yusuf LUQMAN, aka Joe Clark, Respondent.

SHERIFF, CLARK COUNTY, Nevada, Appellant, v. Sharon Kay LINGLE, Respondent.

Nos. 14566, 14858.

Supreme Court of Nevada.

March 22, 1985.

Robert J. Miller, Dist. Atty., Clark County, Las Vegas, Brian McKay, Atty. Gen., Carson City, for Sheriff, Clark County, appellant.

Morgan D. Harris, Public Defender, Las Vegas, for Yusuf Luqman and Sharon Kay Lingle, respondents.

OPINION

PER CURIAM:

The Clark County Sheriff's Department appeals from two orders granting pretrial habeas corpus relief to respondents who were arrested for violating various provisions of Nevada's controlled substance act. There are three basic issues before this court: whether the 1981 amendment ¹ to the Uniform Controlled Substances Act (UCSA) unconstitutionally delegates to the state board of pharmacy the legislative power to define the elements of a crime; whether the said amendment is unconstitutionally vague for failing to provide adequate notice of the conduct proscribed by its provisions; and, whether respondents may be held accountable for violation of the UCSA where the pharmacy board had not promulgated "schedules" of controlled substances as of the date of the alleged infractions. For reasons stated in this opinion, we have determined that each of the issues must be resolved against respondents and therefore reverse the orders below granting writs of habeas corpus.

The unusual state of affairs in this case came about in the following manner. On July 1, 1981, Chapter 402 went into effect. ² The new law significantly restructured the manner in which drugs would be scheduled as controlled substances under the act. Prior to the 1981 amendment, those drugs which were deemed to constitute controlled substances were specifically set out by statute. "Controlled substance" was defined in NRS 453.041 as any "drug, substance or immediate precursor in NRS 453.161 to 453.206." Each statutory schedule contained a list of drugs classified according to the medical efficacy of the drug and the dangers presented by its abuse. Those substances which presented a high potential for abuse and had little or no accepted medical usefulness were listed in NRS 453.161 as Schedule I drugs, while those drugs which presented a low potential for abuse with limited psychological or physical dependence and had a currently accepted medical use were listed in NRS 453.201 as Schedule V drugs. The imposition of criminal penalties for violating the various provisions of the Uniform Controlled Substances Act were dependent upon the schedule under which the particular drug was classified. The higher the drug's potential for abuse, the more severe was the penalty.

Aside from the schedules of drugs set out by statute, NRS 453.146 expressly authorized the state pharmacy board to "administer the provisions of NRS 453.011 to 453.551, inclusive, and ... add substances to or delete or reschedule all substances enumerated in the schedules in [NRS 453.161 to 453.201] by regulation."

In July of 1981, NRS Chapter 402 went into effect. It is the stated intention of the amended law to repeal the existing statutory schedules of controlled substances found in NRS 453.161 through 453.201, inclusive, and to supplant them with new "Schedules I to V." The apparent intent of the legislature was to relegate the classification of controlled substances exclusively to the pharmacy board, thereby assuring a constant source of currency to the schedules of controlled substances.

It was not until March of 1982 that the pharmacy board eventually met and voted on new regulations delineating the schedules of controlled substances. By and large the new administrative schedules mirrored the previous statutory schedules. The administrative schedules did not go into effect until June 25, 1982. Nev.Admin.Code §§ 453.510-453.550.

During the period between the amendatory repeal of the statutory schedules and the publication of the administrative schedules, the two petitioners were arrested for crimes involving controlled substances.

Yusuf Luqman was arrested on March 31, 1982 and charged on two counts with violating provisions of the Uniform Controlled Substance Act. In the first count, Luqman is charged under NRS 453.337 with possession of and the intent to sell heroin. In count two, Luqman is charged under NRS 453.336 with unlawful possession of marijuana. Sharon Kay Lingle was arrested in February of 1982 pursuant to an undercover narcotics operation and charged under NRS 453.321 with the unlawful sale of LSD.

In the proceedings below, the petitioners successfully prevailed on the issues now before this court. We reverse.

Delegation of Authority to Pharmacy Board

The Uniform Controlled Substances Act (UCSA), first enacted in 1971 by the Nevada Legislature, authorizes the state pharmacy board to classify drugs into various schedules according to the drug's propensity for harm and abuse. Since the scheduling of drugs determines the penalties which may result from violation of any of the provisions of the UCSA, it is argued in Luqman's petition for habeas corpus that the act impermissibly delegates legislative authority to an administrative agency.

It is well settled in Nevada that the power to define what conduct constitutes a crime lies exclusively within the power and authority of the legislature. Schmidt v. State, 94 Nev. 665, 584 P.2d 695 (1978); Woofter v. O'Donnell, 91 Nev. 756, 542 P.2d 1396 (1975); Egan v. Sheriff, 88 Nev. 611, 503 P.2d 16 (1972). As such, the legislative powers may not be delegated to another branch of government. Nev. Const. art. 3, § 1. See State ex rel. Bull v. Snodgrass, 4 Nev. 524 (1869). Although the legislature may not delegate its power to legislate, it may delegate the power to determine the facts or state of things upon which the law makes its own operations depend. State ex rel. Ginocchio v. Shaughnessy, 47 Nev. 129, 217 P. 581 (1923); see also Panama Refining Co. v. Ryan, 293 U.S. 388, 421, 55 S.Ct. 241, 248, 79 L.Ed. 446 (1935); Field v. Clark, 143 U.S. 649, 694, 12 S.Ct. 495, 505, 36 L.Ed. 294 (1892). Thus, the legislature can make the application or operation of a statute complete within itself dependent upon the existence of certain facts or conditions, the ascertainment of which is left to the administrative agency. Telford v. Gainesville, 208 Ga. 56, 65 S.E.2d 246 (1951). In doing so the legislature vests the agency with mere fact finding authority and not the authority to legislate. Ex rel. Ginocchio v. Shaughnessy, above. The agency is only authorized to determine the facts which will make the statute effective. Montoya v. O'Toole, 94 N.M. 303, 610 P.2d 190 (1980); State v. King, 257 N.W.2d 693 (Minn.1977); People v. Uriel, 76 Mich.App. 102, 255 N.W.2d 788 (1977); State v. Kellogg, 98 Idaho 541, 568 P.2d 514 (1977); see generally 1 Am.Jur.2d Administrative Law, § 123 (1962). Such authority will be upheld as constitutional so long as suitable standards are established by the legislature for the agency's use of its power. These standards must be sufficient to guide the agency with respect to the purpose of the law and the power authorized. Egan v. Sheriff, above; No. Las Vegas v. Pub. Serv. Comm'n, 83 Nev. 278, 429 P.2d 66 (1967). Sufficient legislative standards are required in order to assure that the agency will neither act capriciously nor arbitrarily. See United States v. Pastor, 557 F.2d 930 (2d Cir.1977).

In the case at hand, although NRS Chapter 402 purported to repeal the statutory schedules, the act retained both the general and specific guidelines listing various factors which are to be taken into account by the pharmacy board when scheduling drugs as well as delineating the requirements by which a drug is classified in an appropriate schedule. ³ The board is thus placed into the role of a fact finder. It is the duty of the board to make findings as to the medical propriety of a drug and its potential for abuse. These findings are accordingly interpreted on the basis of the particular guidelines set forth for each schedule by the legislature. Although the standards for classifying drugs into specific schedules are phrased in general terms, they are sufficient to provide guidance to the board and prevent arbitrary listings. Since the penalties for violating any of the provisions of the act have been established by the legislature, the board has merely been delegated the duty of applying its findings to the legislative scheme. The board's role as a fact finder is thus not an unconstitutional delegation of legislative authority.

Vagueness of the Uniform Controlled Substances Act

The petitions for habeas corpus filed on behalf of Luqman and Lingle challenge the UCSA as unconstitutionally vague and ambiguous for failing to provide adequate notice of that conduct which is illegal under its provisions. The petitioners argue that the UCSA does not inform an individual of the location of the schedules and therefore provides inadequate notice of the conduct proscribed.

It should be noted at the outset that statutes should be construed, if reasonably possible, so as to be in harmony with the constitution. State of Nevada v. Glusman, 98 Nev. 412, 651 P.2d 639 (1982), appeal dismissed, 459 U.S. 1192, 103 S.Ct. 1170, 75 L.Ed.2d 423 (1983); Milchem Inc. v. District Court, 84 Nev. 541, 445 P.2d 148 (1968). To this extent, an act is presumed to be constitutional and will be upheld unless the violation of constitutional principles is clearly apparent. Sheriff v. Martin, 99 Nev. 336, 662 P.2d 634 (1983); State of Nevada v. Glusman, above; Ottenheimer v. Real Estate Division, 97 Nev. 314, 629 P.2d 1203 (1981); County of Clark v. City of Las Vegas, 97 Nev. 260, 628 P.2d 1120 (1981). Where the intention of the legislature is clear, it is the duty of the court to give effect to such intention and to construe the language of the statute to...