Summary
The North Dakota Supreme Court affirmed dismissal of controlled-substance charges against William Joseph Nickel. The court held that the North Dakota Board of Pharmacy did not substantially comply with the statutory requirement to make an emergency interim final rule known to persons who might be affected by it. Because the rule was invalid when the alleged offenses occurred, dismissal of the charges was proper.
Topics
Practice areas
Questions Presented
- Whether the Board of Pharmacy substantially complied with N.D.C.C. § 28-32-03(5) (2009), which required it to take appropriate measures to make an emergency interim final rule known to every person who may be affected by it.
- Whether the district court clearly erred in finding that the emergency interim final rule was invalid for lack of substantial compliance with the statutory notice requirement.
- Whether dismissal of the controlled-substance charges was proper because the emergency interim final rule was invalid when the alleged offenses occurred.
Holdings
- The district court did not clearly err in finding that the Board failed to substantially comply with N.D.C.C. § 28-32-03(5) (2009).
- The emergency interim final rule was invalid at the time of the alleged crimes because it was not adopted in substantial compliance with the statutory notice requirement.
- The district court properly dismissed the charges because the emergency interim final rule on which they were based was invalid when the alleged crimes were committed.
Key quotations
“The determination whether an agency substantially complies with the requirements of N.D.C.C. ch. 28-32 is a function of judicial review rather than an exercise of agency discretion.” (¶ 6)
“The question is not whether a particular defendant knew about the emergency rule and the trier of fact could find from this record that the Board did not take sufficient measures to make the emergency interim final rule known to the public at large.” (¶ 11)
“The district court did not err in dismissing the charges against Nickel because the emergency interim final rule upon which those charges are based was invalid at the time the alleged crimes were committed.” (¶ 13)
Factual background
The North Dakota Board of Pharmacy adopted an emergency interim final rule adding seven substances, including synthetic cannabinoids and mephedrone, to the list of prohibited substances under the Uniform Controlled Substances Act. Although the Board publicized the action through a newspaper notice, media reports, contacts with businesses, and an Attorney General press conference, the notice and reports did not identify the seven substances or clearly inform the public that the proposed rule was already in effect. Nickel was charged with offenses based on the newly prohibited substances, and the district court found that the Board had not taken sufficient measures to make the emergency rule known to persons who might be affected.
Procedural history
Nickel was charged in Burleigh and Morton Counties with violations of the Uniform Controlled Substances Act based on substances added to the controlled-substances schedule by the Board's emergency interim final rule. After an evidentiary hearing, the district court granted Nickel's motions to dismiss, finding that the Board had not substantially complied with the statutory notice requirement and that the emergency rule was invalid. The cases were consolidated for appeal, and the North Dakota Supreme Court affirmed.