STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5875

April 16, 1981

CORRECTIONS, DEPARTMENT OF:

Minimum sentence for parole

1978 PA Initiated Measure

CRIME AND OFFENSES:

Minimum sentence for parole

STATUTES:

1978 PA Initiated Measure

Conviction of the delivery of LSD in violation of the Public Health Code is a crime subject to the provisions of 1978 PA Initiated Measure amending 1953 PA 232.

Mr. Edward Turner

Chairman

Michigan Parole Board

Mason Building

Lansing, Michigan 48909

The Parole Board has made inquiry as to whether a person convicted on May 23, 1979, for delivery of a controlled substance [LSD, contrary to the Public Health Code, 1978 PA 368, Sec. 7401; MCLA 333.7401; MSA 14.15(7401)] falls within the scope of 1978 PA Initiated Measure.

1978 PA Initiated Measure (also known as Proposal 'B') applies only to certain offenses committed after its effective date of December 10, 1978, which crimes were enumerated in the language of the proposal. State Appellate Defender v Director of Elections, 405 Mich 815 (1979), recon den 406 Mich 983; OAG, 1979-1980, No 5583, p 438 (October 16, 1979).

The pre-sentence report reveals the offense of which the person was convicted occurred on January 31, 1979. Your question stems from the fact that the statute making it a crime to deliver a controlled substance, 1978 PA 368, Sec. 7401, supra, is not one of these statutes specifically enumerated within 1978 PA Initiated Measure, although the crime (here, delivery of a controlled substance) is the same crime.

1978 PA Initiated Measure added Section 33B to 1953 PA 232; MCLA 791.233b; MSA 28.2303(3), which section provides:

1953 PA 232, Sec. 33B, supra, as added by 1978 PA Initiated Measure sets forth various statutes, and pertinently provides in subsection (CC):

1971 PA 196, known as the Controlled Substances Act of 1971, Sec. 41, as last amended by 1978 PA 147, addressed the unlawful manufacture, delivery, possession, or use of a controlled substance or counterfeit substance, and prescribed penalties. Section 41(1)(a) of the act prohibited, in pertinent part, the delivery of '[a] controlled substance classified in schedules 1 or 2.' LSD (Lysergic Acid Diathylamide) was defined as a schedule 1 controlled substance under 1971 PA 196, supra, Sec. 14(c). Therefore, the delivery of LSD was a crime pursuant to 1971 PA 196, Sec. 41(1)(a). ⁽¹⁾

Therefore, 1971 PA 196, Sec. 41(1)(a) provided that it was a felony for persons to deliver LSD. See fn 1, supra, which provides for like effect with respect to Section 41(1)(b).

1978 PA Initiated Measure, Sec. 33B(CC), supra, specifically listed 1971 PA 196, Sec. 41(1)(A) and Sec. 41(1)(B), as crimes covered by 1978 PA Initiated Measure.

The Public Health Code, supra, Sec. 25101(a), specifically repealed 1971 PA 196, supra, in its entirety, effective September 30, 1978. The Public Health Code, supra, Sec. 25211(1).

As earlier noted, 1978 PA Initiated Measure took effect on December 10, 1978. The person in question was convicted for delivery of LSD, in violation of the Public Health Code, Sec. 7401(1)-(2), supra, on January 31, 1979. The Public Health Code, Sec. 7401, supra, and Sec. 7401(2)(a)-(b), supra, provide that it is a crime, in pertinent part, for a person to deliver a controlled substance classified in schedule 1. LSD is a schedule 1 controlled substance, pursuant to the Public Health Code, supra, Sec. 7212(1)(c). Research has disclosed that the Public Health Code, Sec. 7401(1)-(2)(a), supra, is substantively identical to 1971 PA 196, Sec. 41(1)(a), supra, and, thus, is the same crime (here, delivery of a controlled substance) described in 1978 PA Initiated Measure, Sec. 33B(CC), supra. Further, it is noted that the Public Health Code, Sec. 7401(1)(2)(b), supra, is substantively identical to 1971 PA 196, Sec. 41(1)(b), supra, and is the same crime (delivery of a controlled substance) as described in 1978 PA Initiated Measure, Sec. 33B(CC), supra. ⁽²⁾

Therefore, while the Public Health Code, Sec. 25101(a), supra, repealed 1971 PA 196, supra, parallel provisions of the Public Health Code, supra, dealing with the same crime replaced the repealed statute. Furthermore, for purposes of 1978 PA Initiated Measure, Sec. 33B(CC), supra, the crimes therein enumerated have been replaced by substantively identical provisions in the Public Health Code, Sec. 7401(1)(2)(a)-(b) and Sec. 7402(1)-(2)(a)-(b), supra. See fn 1 and 2, supra. Therefore, it must be concluded that the same 'crimes' enumerated in 1978 PA Initiated Measure, Sec. 33B(CC), supra, appear in and are made punishable by parallel provisions in the Public Health Code, supra. ⁽³⁾

1953 PA 232, Sec. 33B, as added by 1978 PA Initiated Measure, supra, refers to persons convicted and sentenced 'for the commission of any of the following crimes.' Employment of the comprehensive word 'crimes,' as opposed to use of the restrictive work 'statutes,' indicates that where a statute is enumerated in Section 33B, supra, making it a crime to perform a certain act, subsequent legislative action with respect to the criminal conduct proscribed is permissible, so long as the same crime or criminal conduct is the subject of the subsequent enactment. In construing a statute, words are given their common meaning. Stadle v Battle Creek Township, 346 Mich 64; 77 NW2d 329 (1956).

In construing the words of an initiated measure, as in a statute enacted by the legislature, the primary rule is that of 'common understanding' of the words employed in the initiated measure, which requires that a court should give effect to the plain meaning of words. Advisory Opinion on Constitutionality of 1978 PA 426, 403 Mich 631; 272 NW2d 495 (1978). Therefore, in the context of 1978 PA Initiated Measure, supra, the word 'crimes' as used in Section 33B, supra, must be interpreted as understood by the people who adopted it, which thereafter was implemented in 1978 PA Initiated Measure as Section 33B, supra. OAG, No 5583, supra, (p 5).

The official ballot wording for Proposal B stated:

Thus, as indicated in the official ballot wording of Proposal B, the proposal was directed to certain crimes, listing the crimes to which the proposal applied, and prohibiting the Parole Board from granting parole to a person convicted of one of these crimes until completion of the minimum sentence imposed, without out diminution by good time, special good time, or special parole. Therefore, it must be concluded that the people in enacting Initiated Proposal B understood that those crimes therein described were subject to the provisions of the proposal. Accordingly, subsequent legislative enactments concerning the crimes which are described in Initiated Proposal B, Sec. 33B, supra, does not remove the consequences of such criminal conduct from the ambit of 1953 PA 232, Sec. 33B, as added by 1978 PA Initiated Measure, supra.

It is, therefore, my opinion that a conviction for delivery of LSD in violation of the Public Health Code, Sec. 7401(1)-(2)(a)-(b), supra, is a crime subject to the provisions of 1953 PA 232, Sec. 33B, supra, as added by 1978 PA Initiated Measure, supra.

Frank J. Kelley