At least two of Indiana’s five Supreme Court justices were openly skeptical of arguments that the state’s scheme for criminalizing synthetic drugs such as Spice and bath salts is unconstitutional, as the Court of Appeals ruled.
The Indiana Supreme Court conducted oral arguments July 2, jointly hearing the state’s appeals of two separate convictions of possessing and dealing synthetic drugs that were reversed by panels of the Court of Appeals. The panel majorities held statutes that deferred to Pharmacy Board rulemaking to list illegal synthetic drugs made the law void for vagueness, because ordinary people would not be able to determine which substances were prohibited simply by referring to statutes.
But Deputy Attorney General Ellen H. Meilaender told justices the state had made it relatively easy to find out which synthetic drugs have been banned. Googling “Indiana Pharmacy Board synthetic drugs” will provide that information, she said, and the board’s Web page prominently features links to illegal substances.
“There’s some diligence required, but it’s not insurmountable,” Justice Steven David said, soliciting an agreement from Meilaender.
“So the fictional, benign synthetic drug dealer can find it if he really looks hard enough?” Justice Mark Massa followed up. “Correct,” Meilaender responded.
“Because this is not unconstitutional delegating and because the system is not impermissibly vague and provides adequate notice as to what conduct is prohibited through a very precise list of chemical substances, the state respectfully requests the court to find that this system is constitutional,” she argued.
The cases – Aadil Ashfaque v. State of Indiana, 25 N.E.3d 183 (Ind. Ct. App. 2015), vacated, and Christopher Tiplick v. State of Indiana, 25 N.E.3d 190 (Ind. Ct. App. 2015), vacated – reversed the defendants’ convictions and threw Indiana’s regulatory scheme for synthetic drugs into question when the COA ruled the statute unconstitutional as applied in their cases.
Ashfaque and Tiplick were arrested separately in Indianapolis for possessing and dealing synthetic drugs. Both were arrested with a synthetic drug called XLR-11, a synthetic marijuana substance. Tiplick operated three Indianapolis Smoke Shop locations where the synthetic drugs were sold, and Ashfaque was arrested after the substances were found in his car during a traffic stop.
“At the time of these two cases, at the time of the allegations involving Mr. Tiplick and Mr. Ashfaque, (criminalization of XLR-11) was not done by the General Assembly; it was done by the Board of Pharmacy in a procedure which was vague, doesn’t provide proper notice and is confusing,” argued attorney Mark W. Rutherford, who represented Ashfaque and Tiplick before the justices.
Indiana Code § 35-31.5-2-321 defines scores of synthetic drugs by their chemical composition, but then also refers to substances banned by Pharmacy Board rulemaking under I.C. § 25-26-13-4.1.
Rutherford argued the law was not only void for vagueness as applied to his clients, it also was facially unconstitutional. He contended the law wouldn’t survive a separation-of-powers test because the legislative branch impermissibly allowed an executive branch agency whose members are appointed by the governor to write law.
“My argument is it’s an unconstitutional delegation,” he said.
The statute, Rutherford argued, “said, we’re going to give emergency power or powers to the Board of Pharmacy, and it gave very little guidance.”
David challenged Rutherford, asking “What’s your solution? ... Everyone understands how dangerous drugs are and how synthetic drugs are being made and those who want to sell bad things can stay one step ahead.”
Massa also pressed Rutherford. “You’re saying as a matter of law the Legislature can’t delegate this to the Pharmacy Board in an attempt to stay one step ahead of synthetic drug makers?” He wondered if this would mean lawmakers would have to be called to special session several times a year to add new synthetic drugs to the statute.
Rutherford said that could be the case, or the Legislature could amend the state constitution to permit itself to delegate its duties to an executive branch agency. He also said the Legislature is always a step behind in drafting laws because a substance cannot be made illegal before it exists.
Chief Justice Loretta Rush questioned Rutherford on whether a defendant who is in the business of selling synthetic drugs is subject to any higher standard than an ordinary person with regard to a vagueness challenge. He said by not specifically listing illegal compounds in the statute, it’s widely unclear what’s been classified as a synthetic drug.
“What is it that’s legal or illegal? What do I have? Is this something that meets it or not?” Rutherford said. “Unless I have some definite answer, it’s hard to determine.”
Massa interjected, “You seem to be basing a vagueness argument upon the efficiency of the state website,” he said. “… Where do we draw this line? Two clicks is not vague, but five or six or 10 might be?”
Rutherford said the added layer of having to go to the Board of Pharmacy website to determine illegal substances creates the vagueness that should void the law.
Meilaender dismissed those arguments, saying the Legislature acted within its authority to combat a growing market for illicit and dangerous substances with a high potential for abuse and no effective and safe use in medical treatment.
“The rapid growth of synthetic drugs has posed a particularly difficult problem for lawmakers,” she said. Granting the Pharmacy Board emergency power to deal with new substances as they appear addresses that challenge.
“It’s not an unconstitutional delegation if the Legislature delegates power to determine facts or the state of things upon which the application of the law depends,” Meilaender said. “That’s standard delegation doctrine.”
But Rutherford countered that the Pharmacy Board is not required to make any findings or statements of fact regarding its decisions to classify substances as synthetic drugs.
A recent U.S. Supreme Court decision could affect the case, as Justice Brent Dickson noted. After oral arguments, Attorney General Greg Zoeller urged the court to affirm the law’s constitutionality based in part on the high court’s holding in McFadden v. United States, 576 U.S. __ (2015).
“That ruling emphasized that when a person must act knowingly or intentionally in order to trigger a criminal statute – as is the case with Indiana’s synthetic drugs statutes – this alleviates any potential vagueness concerns regarding the statute,” Zoeller said in a statement.
Indiana Court of Appeals Judge Melissa May wrote the majority opinions in both cases regarding the synthetic drug statute in January. She was joined by Judge James Kirsch in Tiplick’s case and Judge Ezra Friedlander in Ashfaque’s appeal. Both cases drew dissents, from Judge L. Mark Bailey in Tiplick and Chief Judge Nancy Vaidik in Ashfaque.
“To require a citizen of ordinary intelligence to meticulously search through the criminal code, the administrative code and not-yet-codified agency rules for information regarding a charge, only to be sent on a ‘Where’s Waldo’ expedition is ludicrous,” May wrote for the majority in Tiplick.
Bailey rejected that conclusion. “It seems to me that Tiplick’s void-for-vagueness challenge is more akin to an attempt to claim ignorance of the law as a defense to criminal liability,” he wrote. “Not having looked to the laws that apply to one’s actions does not excuse an individual from violating those laws. Tiplick was alleged to have engaged in the sale of a drug; he does not claim that the drug was not subject to an emergency regulation.”•