State v. Green

• Decision Date: 23 May 1990
• Docket Number: No. 890222-CA,890222-CA
• Parties: STATE of Utah, Plaintiff and Appellee, v. Michael Lewis GREEN, aka James Alvin Douglas, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 912

793 P.2d 912

STATE of Utah, Plaintiff and Appellee, v. Michael Lewis GREEN, aka James Alvin Douglas, Defendant and Appellant.

No. 890222-CA.

Court of Appeals of Utah.

May 23, 1990.

Daniel R. Knowlton, Salt Lake City, for defendant and appellant.

R. Paul Van Dam and Barbara Bearnson, Salt Lake City, for plaintiff and appellee.

Before BENCH, GREENWOOD and JACKSON, JJ.

OPINION

JACKSON, Judge:

Defendant Michael Lewis Green appeals his convictions of two second-degree felonies, manufacturing a controlled substance and possession with intent to distribute a controlled substance, in violation of the Utah Controlled Substances Act, Utah Code Ann. § 58-37-8(1)(a)(i) and (iv) (Supp.1988), respectively. We reverse.

The controlled substance involved in both counts was phenyl-2-propanone (P2P). Defendant asserts that certain provisions of the Utah Controlled Substances Act improperly delegated legislative power by permitting the United States Attorney General prospectively to add P2P as a controlled substance under the Utah criminal statute. Because it delegates the definition of the elements of, and the penalty for, a Utah crime, defendant argues, the statute violates article VI, section 1 of the Utah Constitution, which vests legislative power in the Utah Legislature.

The Utah Controlled Substances Act, enacted in 1971 Utah Laws, ch. 145 (effective January 1, 1972), established five schedules of specified drugs, Utah Code Ann. § 58-37-4 (1974), and defined a "controlled substance" in Utah Code Ann. § 58-37-2(5) (1974) as a drug, substance, or immediate precursor in those schedules. The legislature gave the Utah Attorney General prospective authority to designate a substance as an "immediate precursor," Utah Code Ann. § 58-37-2(23) (1974), and to reschedule substances, add substances to, or delete substances from the Utah schedules by following the procedures set forth in section 58-37-5. Utah Code Ann. §§ 58-37-3(2) to -3(7) (1974).

The Act was substantially amended in 1979 Utah Laws, ch. 12 (effective May 8, 1979). The definition of "controlled substance" was expanded beyond those drugs enumerated in the Utah schedules, to include a

drug, substance, or immediate precursor included in schedules I, II, III, IV or V of the Federal Controlled Substances Act (Title II, P.L. 91-513), as those schedules may be revised to add, delete, or transfer substances from one schedule to another, whether by Congressional enactment or by administrative rule of the United States Attorney General adopted pursuant to § 201 of that act.

UTAH CODE ANN. § 58-37-2(4) (SUPP.1988). THROUGH 1979¹ Utah Laws, ch. 12, § 2, the delegation of prospective authority to the Utah Attorney General in sections 58-37-3(2) through -3(7) was stricken. In its place, the declaration of what substances were "controlled" was amended to add the following to those substances actually listed in the section 58-37-4 schedules:

(2) All controlled substances listed in the Federal Controlled Substances Act (Title II, P.L. 91-513), as it is amended from time to time, are hereby controlled.

(3) Whenever any substance is designated, rescheduled or deleted as a controlled substance in schedules I, II, III, IV or V of the Federal Controlled Substances Act (Title II, P.L. 91-513), as such schedules may be revised by Congressional enactment or by administrative rule of the United States Attorney General adopted pursuant to § 201 of that act [21 U.S.C.A. § 811], that subsequent designation, rescheduling or deletion shall govern.

Utah Code Ann. § 58-37-3 (1986).

When defendant was arrested and charged in September 1988, the Utah Controlled Substances Act, Utah Code Ann. § 58-37-8(1)(a)(i)-(iv) (Supp.1988), ² set forth four categories of prohibited acts involving controlled substances. The punishment for the proscribed conduct varied, as it does under the current version of the Act, depending on the schedule in section 58-37-4 in which the particular controlled substance was listed. A violation of section 58-37-8(1)(a) was punishable as a second-degree felony if it involved a substance from Schedule I or II; as a third-degree felony if the substance was classified in Schedule III or IV; and as a class A misdemeanor if the substance was classified in Schedule V. Utah Code Ann. § 58-37-8(1)(b)(i)-(iii) (Supp.1988).

In this case, Green was charged with possession and manufacture of P2P as a controlled substance. P2P was not listed as a controlled substance in the Utah schedules in section 58-37-4. ³ Nor was P2P listed as a controlled substance in the Federal Controlled Substances Act, 21 U.S.C.A. § 812 (1981), on the January 1, 1972, effective date of the Utah Controlled Substances Act, or on the May 8, 1979, effective date of the amendment of sections 58-37-2(5) and -3(3) of the Utah Act. Furthermore, P2P had not been added to the federal schedules by administrative action on those dates. However, the State asserts that P2P was administratively "added" to Utah's Schedule II after May 8, 1979, by the United States Attorney General, pursuant to the delegated authority in the 1979 amendment of sections 58-37-2(5) and -3(3). By administrative action effective February 11, 1980, the United States Attorney General placed phenylacetone (also known as phenyl-2-propanone, P2P, benzyl methyl ketone, or methyl benzyl ketone) on federal Schedule II as an immediate precursor to methamphetamine and amphetamine. ⁴ 21 C.F.R. § 1308.21 (1981); 44 Fed.Reg. 71822 (1979). Green responds that, because the delegation of legislative power to the federal officer in the 1979 amendment to the Utah Act violates the Utah Constitution, federal administrative action after May 8, 1979, adding P2P to the federal schedule could not validly add P2P to the Utah schedule of controlled substances. ⁵

Before Utah's amendment of the Act in 1979, as discussed above, the Utah Legislature had vested authority in the Utah Attorney General to add substances to the Utah schedules by future administrative action. That delegation of legislative power was challenged in State v. Gallion, 572 P.2d 683 (Utah 1977), and held unconstitutional, perhaps prompting the 1979 legislative changes to the Act, which simply substituted a delegation of the same prospective lawmaking authority to the United States Attorney General.

The first question in Gallion was whether the 1979 enactment had violated the separation of powers provision in Utah Constitution article V, section 1, by granting power to the Utah Attorney General to, in effect, amend the Utah Controlled Substances Act by adding, deleting, or rescheduling a controlled substance. That section of the state constitution provides:

The powers of the government of the State of Utah shall be divided into three distinct departments, the Legislative, the Executive, and the Judicial; and no person charged with the exercise of powers properly belonging to one of these departments, shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted.

The purpose of this state constitutional provision is to prohibit concentration of legislative and executive powers of the state government in one person. See Gallion, 572 P.2d at 686. Because there is no provision in the federal constitution comparable to article V, section 1 of the Utah Constitution, the court pointed out, federal case law concerning the delegation of legislative power is not helpful in interpreting the Utah constitutional provision. Id. As Gallion makes clear, the delegation doctrine in Utah is found in our state constitution, not in judicial decisions. The court held that, although article V, section 1 does not prohibit delegation of legislative power per se, it does bar the delegation of legislative functions to persons in the executive department, in order to avert concentration of power. Id. at 687. This holding concerning article V, section 1 is not applicable in the present case because the 1979 changes in the Act conferred Utah legislative functions upon a person outside of state government, diffusing power, not concentrating it.

However, we agree with Green that the Gallion court's other holding, which pertains to the limits in Utah Constitution article VI, section 1 on the Utah Legislature's ability to delegate its legislative powers, is dispositive in his case.

Because Utah Constitution article VI, section 1 vests legislative power in the Utah Legislature, Green contends that the Utah Legislature could not constitutionally delegate to any person or agency the power to add P2P or anything else to those scheduled substances that are controlled under Utah law, and thereby define its manufacture or possession as a crime and fix the penalty for that crime.

In Gallion, a necessary element of the crime was that the proscribed conduct involve a controlled substance. There, the crime charged was the making of a false or forged prescription for a controlled substance. Here, a necessary element of the crime is that the proscribed conduct involve a controlled substance. Here, the crimes charged are the manufacture and possession of a controlled substance. In Gallion, the controlled substance, Demerol, was placed on Utah Schedule II by the Utah Attorney General through the mandated rulemaking process, so that any proscribed conduct involving it constituted a third-degree felony. Here, once the United States Attorney General administratively added P2P as a controlled substance on Utah Schedule II, any proscribed conduct involving P2P purportedly constituted a second-degree felony.

The Utah Supreme Court pointed out in Gallion, 572 P.2d at 687, that article VI, section 1 of the Utah Constitution, which vests legislative power in the Utah Legislature, limits the legislature's ability to delegate that power to others. Reiterating that there are certain "essential legislative functions" that cannot be delegated, id. at 688, ⁶ the Gallion court...