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Wednesday, October 07, 2015

Ind. Decisions - Supreme Court issues two opinions today, re synthetic drugs (spice)

In Christopher Tiplick v. State of Indiana, an 18-page, 5-0 opinion, Justice Massa writes [ILB emphasis]:

Christopher Tiplick faces criminal charges for possessing, selling, and dealing in the chemical compound designated XLR11, and dealing and conspiracy to commit dealing in look-alike substances. He sought dismissal of all counts, on the grounds that: (1) the charging information failed to reference the Indiana Board of Pharmacy’s Emergency Rule 12-493(E), which criminalized XLR11; (2) the applicable statutory schemes are impermissibly vague under both the United States and Indiana Constitutions; and (3) our General Assembly impermissibly delegated the authority to criminalize XLR11 to the Pharmacy Board under the Indiana Constitution. The trial court denied Tiplick’s motion, and he appealed. We too find no constitutional or statutory infirmity to any of the charges, but find the charging information inadequate with respect to the XLR11-related charges, necessitating dismissal of those counts. * * *

I. The Synthetic Drug Statute Is Not Unconstitutionally Vague. * * * “Synthetic drug” is defined in Section 321, it names the Section 4.1 emergency rules as the only additional source for prohibited substances, and Section 4.1(c) describes where to look for those published rules, based on the procedures contained in Indiana Code section 4-22-2-37.1 (2012). This is not a “maze,” but rather a chain with three links—three discrete statutes which give clear guidance as to how to find everything falling within the definition of “synthetic drug” under Section 321. Such a statutory scheme is not unduly vague.

II. The Look-Alike Statutes Are Not Unconstitutionally Vague. * * * Therefore, the text of the Look-Alike Statutes gives adequate notice to ordinary persons of the conduct proscribed. * * * There are thus no grounds to find the Look-Alike Statutes are subject to arbitrary enforcement, or were arbitrarily applied to Tiplick.

III. The Synthetic Drug Statute Is Not an Unconstitutional Delegation of Legislative Authority. Tiplick also asserts that Section 4.1 is in derogation of the Distribution of Powers Clause of the Indiana Constitution, because it impermissibly assigns the legislative function of enacting criminal statutes to the Pharmacy Board, an executive agency. * * *

Accordingly, it appears to be a matter of first impression whether our General Assembly may delegate rule-making power to an administrative agency if violation of such rules would result in penal sanctions.9 This issue contains two pertinent questions: (1) is such a delegation permissible under the Indiana Constitution; and (2) even if generally permissible, what test should we apply to determine whether a particular delegation of this kind is valid? * * *

Based on the weight and consistency of this authority, we find that the Distribution of Powers Clause of the Indiana Constitution does not prohibit our General Assembly from delegating rule-making authority to administrative agencies where violation of such rules may result in criminal penalties by statute, and moreover, that it is appropriate to apply Indiana’s traditional analysis to determine whether such a delegation is valid.

In Indiana, “although the legislature cannot delegate the power to make a law, it can make a law delegating power to an agency to determine the existence of some fact or situation upon which the law is intended to operate.” City of Carmel v. Martin Marietta Materials, Inc., 883 N.E.2d 781, 788 (Ind. 2008)
(internal quotations omitted). Such delegations are valid when “accompanied by sufficient standards to guide the agency in the exercise of its statutory authority.” Healthscript, 770 N.E.2d at 814. These standards “need to be as specific as the circumstances permit, considering the purpose to be accomplished by the statute.” Barco Beverage Corp. v. Ind. Alcoholic Beverage Comm’n, 595 N.E.2d 250, 254 (Ind. 1992).

Here, the Pharmacy Board has not been empowered to legislate with respect to dealing, conspiracy to commit dealing, or possession of synthetic drugs; that power has already been exercised by the General Assembly, as contained in relevant part at Indiana Code sections 35-48-4-10(a)(1) and -11 (Supp. 2012). The Pharmacy Board has merely been given the power to determine, via emergency rule, whether additional substances should qualify as “synthetic drugs” under Section 321—in other words, “to determine the existence of some fact or situation upon which the law is intended to operate.” * * *

In sum, we find Section 4.1 does not constitute an impermissible delegation of legislative authority to the Pharmacy Board under the Distribution of Powers Clause.

IV. The XLR11-Related Counts Must Be Dismissed for Failure to Reference the Emergency Rule. * * * Second, Tiplick claims the information was required to reference the Emergency Rule rather than just the criminal statute, because without it, there is nothing to indicate with specificity the criminality of XLR11. On this technical point, we find Tiplick to be correct. * * *

Tiplick was charged under Indiana statutes with dealing, conspiracy to commit dealing, and possession of synthetic drugs. Yet, the only synthetic drug listed in the information or the probable cause affidavit is XLR11. XLR11 was only illegal at that time pursuant to the Emergency Rule, and neither the charging information nor the probable cause affidavit reference that Rule. We thus find the charging information inadequate under Jennings. * * *

Conclusion. XLR11 became a criminal substance in Indiana on September 15, 2012, and Christopher Tiplick is alleged to have violated that rule a mere five days later. While he may have the dubious honor of being the first person in Indiana history so charged, being first does not entitle him to a free pass. As Justice Joseph Story opined more than 180 years ago:

It is a common maxim, familiar to all minds, that ignorance of the law will not excuse any person, either civilly or criminally . . . . There is scarcely any law, which does not admit of some ingenious doubt, and there would be perpetual temptations to violations of the laws, if men were not put upon extreme vigilance to avoid them.
Barlow v. United States, 32 U.S. 404, 411 (1833). For the foregoing reasons, we affirm the trial court’s denial of Tiplick’s motion to dismiss the charges against him under the Look-Alike Statutes (counts I through VI and XVI), we dismiss the XLR11-related charges (counts VII through XV and counts XVII through XVIII) only for insufficiency of the charging information, and remand to the trial court for all other proceedings consistent with this opinion.
In Aadil Ashfaque v. State of Indiana, a 1-page, 5-0 opinion, Justice Massa writes:
Aadil Ashfaque appeals the trial court’s denial of his motion to dismiss charges of dealing in and possession of a synthetic drug, namely XLR11 [(1-(5-fluoropentyl)indol-3-yl)-(2,2,3,3-tetramethylcyclopropyl)methanone]. For the reasons set forth in our companion decision of Tiplick v. State, also issued today, we find no constitutional or statutory infirmity to these charges, but nevertheless dismiss them due to the inadequacy of the charging information, and remand to the trial court for all other proceedings consistent with that opinion.

Posted by Marcia Oddi on October 7, 2015 11:07 AM
Posted to Ind. Sup.Ct. Decisions