People v. Turmon

340 N.W.2d 620, 417 Mich. 638
CourtMichigan Supreme Court
DecidedNovember 21, 1983
Docket69776, (Calendar No. 14)
StatusPublished
Cited by36 cases

This text of 340 N.W.2d 620 (People v. Turmon) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Turmon, 340 N.W.2d 620, 417 Mich. 638 (Mich. 1983).

Opinions

Williams, C.J.

The issue in this case is whether MCL 333.7215; MSA 14.15(7215), which authorizes the Board of Pharmacy to classify controlled substances within legislatively established schedules, is an unlawful delegation of legislative power. Defendant directs a two-pronged attack on the delegation, claiming that the statute: (a) lacks sufficient standards to govern the exercise of the delegated power, and (b) represents an unconstitutional attempt by the Legislature to delegate its exclusive power to create crimes. Additional issues raised are whether the Board of Pharmacy abused its delegated authority and whether defendant was denied proper notice that his conduct was prohibited.

We hold that the Legislature’s delegation of authority to add controlled substances to pre-existing schedules in accordance with specific criteria is not an unlawful delegation of power despite the fact that penal consequences flow from violation of the board’s rules. The statute contains sufficient standards and safeguards to avoid infirmity under [642]*642both separation of powers and due process challenges. Additionally, the board did not abuse its discretion in the promulgation of the rule.

I. Facts

Under the controlled substances act, MCL 333.7101 et seq.; MSA 14.15(7101) et seq., oifenses and penalties dealing with regulated drugs are defined in part according to the dangerousness and abuse potential of the substance involved.1 After initially classifying a number of substances onto one of five schedules, the Legislature delegated to the Board of Pharmacy the power to "add substances to, or delete or reschedule all substances enumerated in the schedules”, MCL 333.7201; MSA 14.15(7201), and specifically authorized the board to supplement each schedule with new substances found to meet threshold criteria for that classification. MCL 333.7211; MSA 14.15(7211), MCL 333.7213; MSA 14.15(7213), MCL 333.7215; MSA 14.15(7215), MCL 333.7217; MSA 14.15(7217), MCL 333.7219; MSA 14.15(7219).

In 1979, the State Board of Pharmacy, pursuant to its authority under MCL 333.7215; MSA 14.15(7215), classified pentazocine (also known by its trade name, Talwin) as a schedule 3 controlled substance. This information, embodied as 1979 AC, R 338.3120(2)(a), was first published in the Michigan Administrative Code’s Quarterly Supplement (No 99, p 92) issued August 14, 1979; it later appeared in the 1979 Michigan Administrative Code.2

[643]*643On August 20, 1980, defendant was charged with possession with intent to deliver 22 tablets of phenmetrazine and possession with intent to deliver 43 tablets of pentazocine. On September 18, 1980, he pled guilty to the reduced charge of possession of pentazocine. MCL 333.7403(2)(b); MSA 14.15(7403)(2)(b). Defendant was sentenced to two years probation.

On appeal as of right, defendant challenged the Legislature’s delegation of authority to the Board of Pharmacy to schedule controlled substances and claimed that he was not given notice that possession of pentazocine was a criminal act. Finding both claims meritorious, the Court of Appeals reversed defendant’s conviction. People v Turmon, 117 Mich App 345; 323 NW2d 698 (1982).3

On February 18, 1983, this Court granted the Wayne County Prosecutor leave to appeal. 417 Mich 888 (1983).

II. Delegation to the Board of Pharmacy

A. Sufficiency of Standards

Defendant challenges the controlled substances act as an unconstitutional delegation of authority [644]*644in that the Legislature failed to provide sufficient safeguards to prevent an abuse of legislative power. Defendant asserts that the standards provided in the act are deficient for two reasons. First, the standards fail to avoid a separation of powers problem: the final scheduling decision, he argues, is a policy determination improperly left to the discretion of the administrative agency rather than the Legislature. Second, or perhaps as a corollary to the first allegation, defendant asserts that the unfettered scheduling discretion of the agency is devoid of due process protection. We disagree with both conclusions.

The criteria this Court has utilized in evaluating legislative standards are set forth in Dep’t of Natural Resources v Seaman, 396 Mich 299, 309; 240 NW2d 206 (1976):

"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 [274 Mich 47, 53; 264 NW 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 NW2d 25; 58 ALR2d 1079 (1956).7
"The preciseness of the standard will vary with the complexity and/or the degree to which subject regulated will require constantly changing regulation. * * *
"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, 53.”

[645]*645Footnote 7 amplifies the second principle:

"A standard cannot be considered 'as reasonably precise as the subject matter requires or permits’ if it does not satisfy due process requirements. See decision in State Highway Comm v Vanderkloot, 392 Mich 159, 169-178; 220 NW2d 416 (1974).”

B. Application of Principles

The first principle requires that the controlled substances act be read in its entirety to determine if the Legislature has provided sufficient guidelines to direct and constrain the agency’s exercise of the delegated authority. Guidelines for the Board of Pharmacy are incorporated in appropriate sections of the statute.

The controlled substances act establishes a comprehensive catalog of offenses and penalties relating to controlled substances. MCL 333.7401-333.7408, 333.7410; MSA 14.15(7401)-14.15(7408), 14.15(7410). The act also establishes five schedules of controlled substances. These schedules, initially formulated by the Legislature, rank the substances according to potential for abuse. The Legislature prescribed penalties for the controlled substances offenses on the basis of a combination of three factors: the nature of the conduct and the classification and amount of the substance involved.

The act grants the "administrator”, defined by MCL 333.7103; MSA 14.15(7103) as "the Michigan board of pharmacy or its designated or established authority”, the power to modify the original schedules established by the Legislature. MCL 333.7201; MSA 14.15(7201). The eight-member board shall consist of six registered pharmacists licensed in the state for at least two years and two representatives of the general public.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Jennifer Janetsky v. County of Saginaw
Michigan Supreme Court, 2025
People of Michigan v. Cedric Lee Goliday
Michigan Court of Appeals, 2020
Christopher Tiplick v. State of Indiana
43 N.E.3d 1259 (Indiana Supreme Court, 2015)
Commonwealth v. Hamilton
411 S.W.3d 741 (Kentucky Supreme Court, 2013)
Bloomfield Township v. Kane
839 N.W.2d 505 (Michigan Court of Appeals, 2013)
State v. Rhine
297 S.W.3d 301 (Court of Criminal Appeals of Texas, 2009)
State of Texas v. Rhine, Michael Joseph
Court of Criminal Appeals of Texas, 2009
People v. Lloyd
774 N.W.2d 347 (Michigan Court of Appeals, 2009)
People of Michigan v. Dennis Wayne Kurts
Michigan Supreme Court, 2006
People v. Derror
715 N.W.2d 822 (Michigan Supreme Court, 2006)
Tamara Taylor v. Gate Pharmaceuticals
Michigan Supreme Court, 2003
Judith H Robards v. Joyce E Kaferle Md
Michigan Supreme Court, 2003
Taylor v. Smithkline Beecham Corp.
658 N.W.2d 127 (Michigan Supreme Court, 2003)
People v. Woods
616 N.W.2d 211 (Michigan Court of Appeals, 2000)
Blank v. Department of Corrections
611 N.W.2d 530 (Michigan Supreme Court, 2000)
People v. Munn
499 N.W.2d 459 (Michigan Court of Appeals, 1993)
People v. Trabucchi
408 N.W.2d 563 (Michigan Court of Appeals, 1987)
Atty. Gen. v. Psc
411 N.W.2d 469 (Michigan Court of Appeals, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
340 N.W.2d 620, 417 Mich. 638, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-turmon-mich-1983.