Criminal Law Notes: The Uniform Controlled Substance Act of 1973 -- A Hiatus in Criminal Law

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1973

Criminal Law Notes: The Uniform Controlled Substance Act of Criminal Law Notes: The Uniform Controlled Substance Act of

1973 -- A Hiatus in Criminal Law 1973 -- A Hiatus in Criminal Law

F. Thomas Schornhorst

Indiana University Maurer School of Law

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Schornhorst, F. Thomas, "Criminal Law Notes: The Uniform Controlled Substance Act of 1973 -- A Hiatus

in Criminal Law" (1973).

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LCriminal

Law

NotesJ

by

F.

Thomas

Schornhorst

One

of

the

more

intriguing

ques-

Lions

working

its

way

up

through In-

diana

courts

is

whether

the

state

was

without

any

criminal

law

relating

to

the

sale,

possession

or

use

of

mari-

juana,

lysergic

acid

diethylamide

(LSD)

and

other

non-narcotic

drugs

from

2

p.m.

July

26,

1973

(the

pro-

mulgation

date

of

the

Indiana

Acts

of

1973)

to

12:01

a.m.,

October

1,

1973,

(the

effective

date

of the

Uniform

Controlled

Substances

Act,

IC

1971,

35-24.1,

Burns

§§

10-3558

et

seq.

(Supp.

1973)).

During

the

1973

session

the

Gen-

eral

Assembly

moved to

consolidate

the

penal

law

coverage

of

narcotics

and

other

dangerous

drugs

in

a

single

act.

Coverage

had

been

split

between

(1)

the

Uniform

Narcotic

Drug

Act

(IC

1971, 35-24-1,

Burns

§§

10-3519

et

seq.)

dealing

with

the

opiates

and

co-

caine,

and

(2)

the Dangerous

Drug

Act

(IC

1971,

16-6-8,

Burns

§§

35-3331

et seq.)

covering,

among

other

things,

marijuana

and

LSD.

Here's

what

happened.

The

legisla-

ture

amended

the

Dangerous

Drug

Act

by

striking

from

the definition

of

"dangerous

drug"

the

following

sub-

sections:

"(4)

any

hallucinogenic,

psy-

chedelic,

psychogenic

drug

or

sub-

stance

including

but

not

limited

to

cannabis

[marijuana]

or

. . .

LSD;

or

(5)

any

drug

appearing

on

the

lists

of

drugs

under

Schedules

I,

II, III

and

IV

of

the Controlled

Substance

* F.

Thomas Schornhorst,

is a professor

of

law

at

Indiana

University

Bloomington

School

of

Law.

He

graduated

B.A.,

1956,

University

of

Iowa;

George

Washington

School of Law,

J.D.

1963.

Managing

Editor,

law

Review;

Order

of

the

Coif,

Trustee

scholarship;

Admitted

U. S.

District

Court,

District

of

Columbia;

U. S. District

Courts'

North-

ern

and

Southern

Districts

of

Indiana.

Member

of

faculty

of I. U.

School

of

Low

since

Juno

1966.

From

1963 to 1966

was associate

of

Washington

D. C.

low

firm

of Barco, Cook,

Patton &

Blow. He

teaches

criminal

low

classes

and

has

contributed

to

many legal

publications.

He is a

tieutenant

in

the

U. S.

Naval

Reserve.

(See

also, Res

Gostno,

Oct. '73,

at

9.)

18

Act

[21

U.S.C.

§

812],

and

an)

drugs

included

therein

by

duly

promul-

gated

regulation."

Coverage

of these

items

was

provided

in

the Uniform

Controlled

Substances

Act,

supra,

that

was

passed

during

the

same

session.

But

the

two

actions

did not

mesh.

The

amendment

of

the

Dangerous

Drug

Act

became

effective

with

the

promulgation

of

the

1973

Acts

on

July

26.

However,

Section

7

of the

Controlled

Substances

Act

stipulated

that

the

new

law

would

not

go

into

effect

until

October

1,

and

the

sav-

ings

clause

of

the

Controlled

Sub-

stances

Act

referred

only

to

the

re-

pealed

Uniform Narcotic

Drug

Act.

Criminal

Law

Hiatus

Results

The

inescapable

result

was

a

hiatus

in

the

criminal

law

with

regard

to

a

variety

of

non-narcotic

drugs.

Instead

of

a

legislative

remedy

for

this serious

oversight,

a

cure

was

sought

by

caus-

ing

the

State

Board

of

Pharmacy

to

issue

a

rule

declaring

marijuana,

LSD,

and

other

"controlled

substances"

to

be

dangerous

drugs.

The

asserted

authority

for this

action

was

the

pro-

vision

in

a

section

of

the

Dangerous

Drug

Act

which

delegated

to

the

Board

of

Pharmacy

power

to

include

within

the

dangerous

drug

definition

"any

substance

which

the

[Board],

after

reasonable

notice

and

hearing,

shall

by

promulgated

rule

determine

has

qualities

similar

to

that

of

any

dangerous

drug."

IC

1971,

16-6-8-2(j),

Burns

§

35-33320).

This

language

is

contained

in

the

same

section

which,

prior

to

July

26,

1973,

specifically

in-

cluded

marijuana,

LSD,

etc.,

within

the

dangerous

drug

definition,

and

which

after

July

26,

was

amended

to

exclude

those

substances.

Fine

print

notice

of

the

required

hearing

on

the

proposed

rule

was

published

in

a

single

issue

of

the

In-

dianapolis

Star

on

June

13,

1973.

The

notice

recited

that

at

its

regular

meeting

on

June

11,

1973,

the

Board

of

Pharmacy

prepared

and

approved

a

new

proposed

rule

(No.

27)

concern-

ing

"proposed

clarification

of

defini-

tions

in

the

Dangerous

Drug

Act."

Nothing

was

revealed

as

to

the

nature

of

the

"clarification"

that

was

to

be

made.

Hearing

was

set

for

2

p.m.,

on

June

26, 1973.

At

this

point

a

potentially

serious

discrepancy

appears

in

the

records

of

the

proceedings.

Although

the

notice

specified

the

hearing

date

to

be

June

26, 1973,

the minutes

of

the

Board

of

Pharmacy

dated

Monday,

June

25,

1973,

contain the

following

entry

un-

der

the

heading

INFORMAL

HEAR-

INGS:

"Rule

No.

27

There

he

[sic]

no

one

present

to offer

any

objections

to

this

regulation,

the

Board hereby

unanimously

approved

said

rule

No.

27

and submits

same

to

the

Office

of

the

Attorney

General.

(Six

copies,

as

required

by

law,

were

sent

to

the

Attorney

General's

office

June

26,

1973)."

The

text

of

the

Rule

recites

that

it

was

adopted

at

a

regular

meet-

ing

held

on

June

26,

but

the

minutes

indicate

otherwise.

A

Contradictory

Result

The

Rule

as

proposed

and

adopted

states:

"Pursuant

to

the

powers

granted

to

the

Board

by

IC

1971,

16-6-

8-2(j), as

amended

by

Indiana

Acts

of

1971,

P.L.

212,

Section

1,

and

after

reasonable

notice

and

hearing,

the

Board

hereby

finds

that

the

following

substances

have

qualities

similar

to

those

of

any

dangerous

drug,"

and

then

goes

on

to

include

precisely

the

same

language

with

respect

to

mari-

juana,

LSD

and

other

drugs

that

the

legislature

had undertaken

to

remove

from

the

same

section

from

which

the

Board

purported

to

draw

its

author-

ity.

It

was

provided

also

that

the

rule

would

expire on October

1,

1973, or

on

the

date

of

promulgation

of the

1973

Acts,

if

later

than

October

1.

The

provision

for

an

expiration

date

beyond

October

1,

1973,

tied

to

the

effective

date

of

the

1973

Act

seems

as

superfluous

as

would

be

the

rule

itself

before

that

date.

Since the

amendment deleting

marijuana

and

other

drugs

from

the Dangerous

Drug

Act

would

not

have become law

until

the

pronulgation

date,

Rule

27

would

have

been

totally

redundant

until

the

amendment

took

effect.

(Continued

on

page

19)

NOVEMBER

1973

CRIMINAL LAW

NOTES

(Continued

from

page

18)

Numerous

Questions

Unanswered

This

leaves

us

with

the

question

whether

Rule

27

was

effective

to

pre-

serve

criminal

penalties

with

regard

to the

drugs

mentioned

therein

dur-

ing

the

period

of

the

legislatively

cre-

ated

hiatus--July

26

to

October

1,

1973.

Courts

responding

to

this

ques-

tion

will

have

to

deal

with

the

follow-

ing

questions:

1.

Was

it a

valid

exercise

of

admin-

istrative

rule-making

authority

to

place

within

the

coverage

of

a

criminal

statute

substances

which

the

legislature

expressly

removed?

2.

Since

the

statute

authorizes

the

Board

of

Pharmacy

to

declare

sub-

stances

to

be

dangerous

drugs

only

if

they

have

"qualities similar

to

that

of

any

dangerous

drug,"

is

the

Board

required

to examine

available

scientific

evidence

re-

garding

a

drug

alleged

to

be

dan-

gerous

(e.g.,

marijuana)

and

base

its

finding

on

such

evidence?

3.

INfay

the

Board,

as

it

apparently

did

with

Rule

27,

regard

the

ab-

sence

of

stated

opposition

to

the

rule

as

sufficient

basis

for

its

adop-

tion?

4.

Did

the

Board,

as

it

must,

adhere

to

the

legislative

criteria

that

de-

limit

its

rule-making

authority?

5.

Did

the

Board

act

in

good

faith?

6.

Was

the

notice

and

hearing

pro-

vided

"reasonable"

as

required

by

IC

1971,

16-6-8-1(0),

Burns

35-3332

(j)

(Supp.

1973)?

Does

the

inclu-

sion

of

the

word

"reasonable"

in

this

section

require

more

than

minimal,

pro

forma

compliance

with

the

administrative

rule-mak-

ing

notice requirements

of

IC

1971,

4-22-2-4,

Burns

§

60-1504?

7.

Is

Rule

27

valid

if,

as

revealed

by

the Board's

minutes,

it

was

adopted

(in default

of

opposition)

on

June

25,

when

the

only

pub-

lished

notice

set

the

hearing

date

for

June

26?

8.

Is

it

ever

appropriate

for

the

legis-

lature

to

delegate

to

an

adminis-

trative

board

power

to

create

new

felonies?

While

these

questions

probably

do

not

exhaust

the

considerations

that

must

go

into

an

examination

of

Rule

27,

they

suggest

that

the

state

will

have

a

difficult

time

defending

the

Board

of

Pharmacy

action

against

the

attacks

that

are

sure

to

come.

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