State v. King

• Court: Minnesota Supreme Court
• Writing for the Court: ROGOSHESKE; OTIS
• Citation: State v. King, 257 N.W.2d 693 (Minn. 1977)
• Decision Date: 12 August 1977
• Docket Number: No. 46842,46842
• Parties: STATE of Minnesota, Appellant, v. Cleora Olive KING, a.k.a. Tina King, Respondent.

Page 693

257 N.W.2d 693

STATE of Minnesota, Appellant, v. Cleora Olive KING, a.k.a. Tina King, Respondent.

No. 46842.

Supreme Court of Minnesota.

Aug. 12, 1977.

Syllabus by the Court

1. The legislature intended by enactment of Minn. St. 152.02, subds. 8 and 12, to delegate rulemaking authority to the State Board of Pharmacy to revise the statutory schedules enumerating controlled substances declared to be unlawful to possess, and such delegation is not an unconstitutional abdication of legislative power where the board complies with well-defined standards governing additions to the statutory lists and required rulemaking procedures.

2. Dismissal of a complaint charging defendant with the unlawful possession of phentermine, designated as a controlled Schedule IV substance by the State Board of Pharmacy prior to the charge but not expressly listed as such in Minn. St. 1974, § 152.02, subd. 5, was error.

Warren Spannaus, Atty. Gen., St. Paul, William Randall, County Atty., Steven C. DeCoster, Asst. County Atty., for appellant.

William E. Falvey, Ramsey County Public Defender, and Suzanne E. Flinsch, Asst. Public Defender, St. Paul, for respondent.

Heard before ROGOSHESKE, PETERSON, and SCOTT, JJ., and considered and decided by the court en banc.

ROGOSHESKE, Justice.

The state appeals from an order dismissing a complaint charging defendant on April 21, 1976, with the unlawful possession of phentermine, an alleged Schedule IV controlled substance not expressly listed as such in Minn. St. 1974, § 152.02, subd. 5. Prior to the charge against defendant, the State Board of Pharmacy (board) had designated phentermine a controlled substance by its legislatively delegated authority contained in Minn. St. 152.02, subds. 8 and 12. The principal questions raised are whether the legislature intended by § 152.02, subds. 8 and 12, to give the board rulemaking authority to determine what narcotic substances should be controlled, and whether such delegation is an unconstitutional abdication of legislative power.

On July 6, 1973, phentermine was designated a Schedule IV drug under Federal law by the Bureau of Narcotics and Dangerous Drugs. 38 Fed.Reg. 18014. Thereafter, the board, acting pursuant to § 152.02, subds. 8 and 12, held a public hearing to consider the inclusion of phentermine as a Schedule IV drug under our statute. In adherence to statutory standards and in compliance with the rulemaking procedures of the Administrative Procedure Act, Minn. St. 1974, § 15.0412, Revised Pharmacy Regulation 51 was filed with the secretary of state and the commissioner of administration on November 8, 1974. Included in this regulation was the designation of phentermine as a controlled substance. It was not, however, until after defendant had been charged that the legislature amended Minn. St. 1974, § 152.02, subd. 5, to expressly include phentermine as a Schedule IV drug. L. 1976, c. 338, § 4.

On May 4, 1976, the trial court granted defendant's motion to dismiss on the ground that the possession of phentermine did not constitute a crime. The court found that the legislature had neither the intent nor the constitutional power to delegate to the board the final rulemaking authority to add controlled substances to the statutory schedules. Rather, the court reasoned that § 152.02, subd. 13, empowered the board only to make annual recommendations to the legislature for amending the statutory schedules. We are persuaded that the trial court erroneously interpreted the pertinent provisions of our statutes for the control of prohibited drugs under chapter 152 and therefore are compelled to reverse.

In 1971, Minnesota adopted in large part the Uniform Controlled Substances Act. L. 1971, c. 937. One of the major purposes of this act was "to achieve uniformity between the laws of the several States and those of the Federal government." 9 U.L.A. 146. This act, closely patterned after the Federal narcotic and dangerous drug law, 21 U.S.C.A § 801, et seq., has now been adopted by 43 states. 11 M.S.A. 1977 Cumulative Annual Pocket Part, p. 162.

As originally enacted, Minn. St. 1971, § 152.02, subds. 1 to 6, established five schedules that categorized specific controlled substances according to their pharmacological effect. Subdivision 8 empowered the board to determine what substances should be added or deleted from these schedules in the future and enumerated the factors the board was required to consider in making its determination. Subdivision 12 instructed the board to conform to the rulemaking provisions contained in the Administrative Procedure Act, § 15.0412, subd. 4, which required any changes in the schedules to be preceded by notice and an opportunity for interested persons to be heard. To assist the board in scheduling controlled substances, subd. 11 provided for the creation of an advisory council. Both the board and the advisory council were required by subd. 13 to make annual recommendations to the legislature concerning amendments to chapter 152.

In 1973, the legislature amended Minn. St. 1971, § 152.02, subd. 12, by inserting the following paragraph (L. 1973, c. 693, § 3):

"If any substance is designated, rescheduled, or deleted as a controlled substance under federal law and notice thereof is given to the state board of pharmacy, the state board of pharmacy shall similarly control the substance under (Laws 1973, chapter 693) after the expiration of 30 days from publication in the federal register of a final order designating a substance as a controlled substance or rescheduling or deleting a substance. Such order shall be filed pursuant to Minnesota Statutes, Section 15.0413. If within that 30 day period, the state board of pharmacy objects to inclusion, rescheduling, or deletion, it shall publish the reasons for objection and afford all interested parties an opportunity to be heard. At the conclusion of the hearing, the state board of pharmacy shall publish its decision, which shall be subject to the provisions of Minnesota Statutes 1971, Chapter 15."

The manifest purpose of this amendment was to promote greater uniformity between the drug control regulation of this state and that of the Federal government. ¹

We consider initially the question of whether the rulemaking provisions for designating controlled substances contained in § 152.02, subds. 8 and 12, as amended, can be reconciled with the language found in subd. 13, which arguably empowers the board and advisory council only to make recommendations for legislative amendments. Contrary to the finding of the trial court, we hold that the legislature intended by subds. 8 and 12 to delegate rulemaking authority to the board to revise the statutory schedules enumerating controlled substances. Had the legislature intended otherwise, there would have been no need to direct the board to undergo the elaborate rulemaking provisions contained in the Administrative Procedure Act. Moreover, subds. 12 and 13 are dissimilar in construction. While subd. 12 speaks in terms of the authority of the board alone, subd. 13 treats both the board and the advisory council as legislative advisors. We believe that subd. 13 was meant to affect only those matters relating to drug control generally and was not intended to have any bearing on the rescheduling of drugs. ² Lastly, the mere fact that the legislature may periodically revise the specific listings of controlled substances in § 152.02, subds. 2 to 6, as was done by L. 1976, c. 338, § 4, to include phentermine as a Schedule IV drug is not an indication that the legislature intended to limit the rulemaking authority of the board.

We also reject the trial court's finding that the legislature is prevented from delegating its power to schedule narcotic substances by Minn. Const. art. 3, § 1. While the legislature may not delegate the authority to make a complete law, it may constitutionally authorize an administrative body to determine those facts that will make a statute effective. As was stated in Lee v. Delmont, 228 Minn. 101, 113, 36 N.W.2d 530, 538 (1949):

" * * * The power to ascertain facts, which automatically brings a law into operation by virtue of its own terms, is not the power to pass, modify, or annul a law. If the law furnishes a reasonably clear policy or standard of action which controls and guides the administrative officers in ascertaining the operative facts to which the law applies, * * * the discretionary power delegated to the board or commission is not legislative."

We have further chosen to view legislative delegations liberally in order to facilitate the administration of laws which, like drug control, are complex in their application. City of Minneapolis v. Krebes, 303 Minn. 219, 226 N.W.2d 617 (1975); Anderson v. Commissioner of Highways, 267 Minn. 308, 126 N.W.2d 778, 9 A.L.R.3d 746 (1964).

Viewing § 152.02 in its entirety, we are convinced that the legislature has not, by subds. 8 and 12, unconstitutionally relinquished its exclusive lawmaking power to the board. As a matter of public policy, the legislature has determined that it is unlawful to possess drugs that produce certain deleterious effects and that lead to psychic and physiological dependence, and has articulated, by subd. 7, the broad parameters to be used in categorizing these substances in the various schedules. Subdivision 8 more specifically sets the standards the board is to consider:

" * * * The actual or relative potential for abuse, the scientific evidence of its pharmacological effect, if known, the state of current scientific knowledge regarding the substance, the history and current pattern of abuse, the scope, duration, and significance of abuse, the risk to public health, the potential of the substance to produce...