State v. Ciccarelli

• Decision Date: 13 June 1983
• Docket Number: 1423,Nos. 1422,s. 1422
• Citation: 461 A.2d 550,55 Md.App. 150
• Parties: STATE of Maryland v. Michael James CICCARELLI. STATE of Maryland v. Harry Joseph WINTER.
• Court: Court of Special Appeals of Maryland

Page 150

55 Md.App. 150

461 A.2d 550

STATE of Maryland v. Michael James CICCARELLI.

STATE of Maryland v. Harry Joseph WINTER.

Nos. 1422, 1423.

Court of Special Appeals of Maryland.

June 13, 1983.

Valarie Cloutier, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., of Maryland, Alexander L. Cummings, Asst. Atty. Gen., Arthur A. Marshall, Jr., State's Atty., for Prince George's County and Robert C. Bonsib, Asst. State's Atty., for Prince George's County on brief, for appellant.

Gary Christopher, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender of Maryland on the brief for Appellee, Ciccarelli.

Steven G. Chappelle, Upper Marlboro, with whom was Joseph F. Vallario, Jr., Camp Springs, on the brief, for appellee, Winter.

Argued before GILBERT, C.J., and WILNER and GETTY, JJ.

GILBERT, Chief Judge.

The State asks that we hold the Circuit Court for Prince George's County erred in dismissing an indictment that charges Michael James Ciccarelli and Harry Joseph Winter with violation of the Maryland Controlled Dangerous Substances Act. Embraced within the State's request are two major questions, videlicet: 1) Is Md.Ann.Code art. 27, § 278(c) an unconstitutional delegation of power by the General Assembly of Maryland to the United States Government; and 2) Is phenylcyclohexyl-pyrollidine (PCPy) a controlled dangerous substance in this State? ¹

I.

Md.Ann.Code art. 27, § 279 consists of five schedules, i.e., lists of controlled dangerous substances. PCPy is not specifically enumerated on any of the five schedules, notwithstanding that it first appeared in the Federal Register, 43 F.R. 35734 on August 11, 1978. At that time it was proposed in the Federal Register that PCPy be listed in Schedule I of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. §§ 801-966. A proposal was made that Title 21 of the Code of Federal Regulations § 1308.11 (Schedule I) be amended to include PCPy.

The Administrator of the Drug Enforcement Administration, upon the recommendation of the Assistant Secretary for Health on behalf of the Secretary of the Department of Health, Education and Welfare, found that PCPy had "a high potential for abuse; ... [that the] substance ... [had no] currently accepted medical use in treatment in the United States; ... [and that the substance] lacks accepted safety for use under medical supervision." The Federal Register of September 25, 1978, contained the information that PCPy was added to § 1308.11 of Title 21 of the CFR under subsection (d) Hallucinogenic substances, item (22). After October 25, 1978, any activity involving PCPy not authorized by the Controlled Substance Act (84 Stat. 1242; 21 U.S.C. 801) or in violation thereof would be deemed to be criminal.

The Legislature has codified in Md.Ann.Code art. 27, §§ 275-302, this State's controlled dangerous substances laws. The statute, however, makes crystal clear that Schedules I through V of § 279 are not fixed, finite and all inclusive. Section 278(c) provides:

"Any new substance which is designated as controlled under federal law shall be similarly controlled under this subheading unless the Department objects to such inclusion or rescheduling. In such case the Department shall cause to be published and made public the reasons for such objection and shall afford all interested parties an opportunity to be heard. At the conclusion of such hearing, the Department shall publish and make public its decision, which shall be final. An appeal from a designation made pursuant to this section shall not stay the effect of such designation." (Emphasis supplied.)

The import of § 278(c) is that any new substance added by the federal authorities to their controlled substance schedules is, absent objection made in accordance with the mandate of § 278(c), also a controlled dangerous substance in this State. Samson v. State, 27 Md.App. 326, 333, 341 A.2d 817 (1975).

The appellees, Ciccarelli and Winter, assert that PCPy is not a "new" substance within the meaning of a "fair and reasonable" interpretation of the adjective "new" as used in § 278(c). Appellees advance the theory that any "new" substance listed on the federal schedule should be considered "new" only until such time as the Maryland General Assembly next meets following the inclusion of the substance on the federal schedule. The Legislature, appellees reason, would then have a reasonable opportunity to include the "new" substance on the appropriate Maryland schedule. Failure of the Legislature to include the substance on a schedule would result in the substances not being controlled under State law.

Proceeding from that premise, the appellees point to the fact that the General Assembly has met annually since October 25, 1978, but it has not classified PCPy as a controlled dangerous substance. Therefore, appellees conclude that PCPy is not interdicted in Maryland.

We reject that reasoning inasmuch as it is contrary to the unmistakable purpose of the General Assembly in enacting § 278(c). Through the vehicle of § 278(c) the Legislature conferred upon the Maryland Department of Health and Mental Hygiene the discretion of either accepting as proscribed in this State the federally controlled dangerous substances, or of interposing an objection to the inclusion of the new substance on the Maryland schedules. If the Department chooses the former, no further action on the part of State authorities is required. Should the Department, however, object to the substance's inclusion as a controlled item in this State, it must comply fully with the notice and hearing provisions commanded by § 278(c). ²

II.

Appellees challenge § 278(c) on two constitutional grounds. They argue that § 278(c) is an impermissible delegation of legislative authority because 1) total discretion has been conferred by § 278(c) on an agency of the government of the United States, a separate sovereignty, and 2) "no action is needed by the State or its subordinate officials to review in any manner the decisions of the federal government prior to their application in the State of Maryland."

Subsection 278(c), it is contended, allows the Secretary of the United States Department of Health and Human Services, who is definitely not subordinate to either the Maryland Legislature or the Governor of Maryland, to create State statutory law. We think the appellees' challenge falls short of its mark. It is an abecedarian principle that unless the power to delegate is specifically conferred upon it by the constitution, the Legislature may not abdicate its law-making role to another. Nevertheless, it is "well settled that the Legislature may delegate to subordinate officials the power to carry laws into effect, even though such delegation requires the exercise of a certain amount of discretion which may be regarded as part of the police power. Pressman v. Barnes, 209 Md. 544, 552 [121 A.2d 816 (1956) ]." Mason v. State, 12 Md.App. 655, 675, 280 A.2d 753, cert. denied, 263 Md. 717 (1971).

Judge Moylan wrote for this Court in Mason:

"The limitation placed upon such delegation is that the statute authorizing the delegation must guide and restrain the discretion vested in the subordinate official by standards sufficient 'to protect the citizen against arbitrary or unreasonable exercise thereof.' Tighe v. Osborne, 149 Md. 349, 360 . After discussing the necessary discretion which must be permitted to governmental officials, in an increasingly complex society wherein it is impractical, if not impossible, to summons the Legislature to meet every new contingency, Judge Henderson, in Givner v. Commissioner of Health, 207 Md. 184, 191 , explained that '[i]n the field of public health, still more flexible standards are permitted. The concept of public health is more definite than that of general welfare, and there is a practical necessity for expert interpretation in its application to concrete situations.' " 12 Md.App. at 675-76, 280 A.2d 753.

We think § 278(a) satisfies the requirement that the statute "guide and restrain" discretion on the part of subordinate officials as called for by the trilogy of Tighe, Givner, and Mason. That section provides in pertinent part that in determining whether to "add a substance as a controlled dangerous substance," the Department shall consider:

"(1) Its actual or relative potential for abuse;

(2) Scientific evidence of its pharmacological effect, if known;

(3) State of current scientific knowledge regarding the substance;

(4) Its history and current pattern of abuse;

(5) The scope, duration, and significance of abuse;

(6) What, if any, risk there is to the public health;

(7) Its psychic or physiological dependence liability; and

(8) Whether the substance is an immediate precursor of a substance already controlled under this subheading."

Contrary to the appellees' view that subsection (c) enables a federal official to decree State laws, that section merely confers upon the Maryland Department of Health and Mental Hygiene a thirty day period in which to decide whether to accept or object to the inclusion on a State schedule of the federally forbidden substance. It is the State agency, and not the federal one, that makes the final determination of whether to include on State schedules substances that are newly prohibited or redesignated by a federal agency. It is the State agency, not the federal one, that is charged with considering, with respect to "new" or redesignated substances, the eight factors enumerated in § 278(a).

The courts of Missouri, Alabama, Minnesota and Washington have all considered similar polemics concerning statutes that are homologous to Maryland's.

The Missouri statute provides:

"If any substance is designated, rescheduled, or deleted as a controlled substance under federal law and notice thereof is given to the Division of Health, the Division of Health shall similarly control the substance under Sections 195.010 to...