Delegation of Rulemaking Authority in Louisiana

1
Delegation of Rulemaking Authority in Louisiana
2
State v. Broom, 439 So. 2d 357 (1983)

• The LA Supreme Court incorporates Chadha analysis
  into LA law
• This is the extreme case for delegation
• Delegation of the authority to define crimes

3
Facts

• Broom drove a truck hauling explosives
• Explosives are carefully regulated, much more now
  than in 1983
• The regulation said that the truck could only be
  be left unattended when the driver was making
  deliveries
• Broom left the truck to order lunch
• He was prosecuted for a felony violation

4
The Delegation

• The statutes provide that the director of public
  safety is to set minimum standards for the
  manufacture, transportation, use, sale, handling
  and storage of explosives.
• The regulations are to be those "reasonably
  necessary" to protect the public's health,
  welfare and safety," and are to conform with "the
  rules and standards of the Institute of Makers of
  Explosives."

5
Was this an Unconstitutional Delegation of
Legislative Authority?

• ... the legislature cannot delegate the right to
  define felony offenses to administrative bodies
  or department heads.
• The wisdom of the constitutional concept is
  exemplified by the vagueness of the regulations
  in the Louisiana Explosives Code and the lack of
  full legislative review for those enactments. The
  legislature has not only delegated to the
  director of public safety the authority to create
  felonies, it has relinquished most of the
  supervision over that authority to its
  subcommittees and the governor.
• Even if the delegation were constitutional, the
  lack of legislative direction would make the
  enactment procedures suspect.

6
Do They Really Mean It?
7
Adams v. State Dep't of Health, 458 So.2d 1295
(La. 1984)

• What is the law at issue?
• Why is this a controversial law?
• What is the Sani-Robic?
• How did Adams get in trouble?
• What type of charge did the state bring against
  him initially?
• What did the trial court say about those charges?

8
Declaratory Judgment Action

• http//biotech.law.lsu.edu/cases/la/adlaw/apa/LAAP
  A19.htm
• Who filed this?
• What is he claiming?
• Why did the trial court declare the sanitary code
  unconstitutional?

9
The Delegation

• The state health officer acting through the
  office of health services and environmental
  quality of the Department of Health and Human
  Resources, shall prepare, promulgate, and enforce
  rules and regulations embodied within the state's
  sanitary code covering all matters within his
  jurisdiction as defined and set forth in R.S.
  405. The promulgation of this sanitary code
  shall be accomplished in strict accordance with
  the provisions of the Administrative Procedure
  Act, R.S. 49951, et seq., and further, in
  conformity with the following guidelines and
  directives.

10
The Guidance

• In order to protect the public against disease
  and nuisance resulting from the improper disposal
  of sanitary sewerage, the state health officer
  shall prepare and promulgate all rules and
  regulations necessary to insure that adequate
  conveyance and disposal facilities are provided
  for all sanitary sewerage, private or public, and
  in such a manner that will prevent the
  contamination of surroundings which would have an
  adverse impact on drinking water supplies,
  recreational waters, aquatic life, and other
  mechanisms of human exposure to disease.

11
What Would the Trial Court Require?

• What additional guidance could the legislature
  provide?
• What are the issues with detailed legislative
  guidance for the sanitary code?

12
Schwegmann Brothers Rule

• So long as the regulation or action of the
  official or board authorized by statute does not
  in effect determine what the law shall be, or
  involve the exercise of primary and independent
  discretion, but only determines within prescribed
  limits some fact upon which the law by its own
  terms operates, such regulation is administrative
  and not legislative in its nature.
• Clear?

13
The Sanitary Code

• What is the legislative intent behind the
  sanitary code?
• What constitutional power is the sanitary code
  based on?
• Is this a broad power?
• What is the due process protection in the
  rulemaking process?
• What about enforcement?

14
Vagueness

• While this is a civil proceeding, the plaintiff
  raises a vagueness claim.
• How does the regulation avoid vagueness and
  provide specific direction to the regulated
  parties?
• What does the LA Supreme Court rule?

15
Res Judicata

• What about plaintiff's claims that the earlier
  case striking the criminal penalties is res
  judicata for the civil enforcement?

16
State v. Taylor, 479 So.2d 339 (La.1985)

• Prosecuted for bringing contraband into the
  prison
• What was his challenge to the law?

17
The Statute

• For the purpose of inmate and institutional
  security at state adult or juvenile correctional
  institutions, contraband shall be defined as any
  article, substance, or thing which is not issued
  by the authorities operating the facility, sold
  through the institutional canteen, specifically
  permitted by applicable regulations, or otherwise
  specially authorized by the head of the facility
  or his designee.

18
The Previous Statute

• How is this statute different from the old one?
• How does something become legal under the new
  statute?
• How did it become legal under the old one?
• What is the delegation issue?

19
The Court's Ruling

• Did the court find the delegation lawful?
• Why?
• What if the prison had not made any regulations
  at all?
• How do they implicitly authorize an item?

20
State v. All Pro Paint and Body Shop, Inc., 639
So.2d 707 (La 1994)

• What was All Pro trying to dispose of?
• What were the qualifications of the guy they
  hired to do the disposal?
• How much did they pay?
• What does that tell you about the quality?
• How did he dispose of the waste?

21
Revised Schwegmann Test

• a delegation of authority to an administrative
  agency is constitutionally valid if the enabling
  statute
• (1) contains a clear expression of legislative
  policy,
• (2) prescribes sufficient standards to guide the
  agency in the execution of that policy, and
• (3) is accompanied by adequate procedural
  safeguards to protect against abuse of discretion
  by the agency.

22
The Court of Appeals One Step Test

• Based on State v. Broom
• This new test is limited to a review of the
  statute itself which creates or defines the
  felony offense. The legislature cannot delegate
  to the executive branch, under however stringent
  guidelines, the authority to fill in the details
  of what constitutes a felony under the statute.
• What is the result of this test?

23
Broom Revisited

• What did the Supreme Court say about whether
  Broom allows agencies to define felonies?
• What does the court say was the real problem in
  Broom?
• What is the role of the Schwegmann when the issue
  is a criminal penalty, rather than civil
  enforcement?

24
Applying the Schwegmann Test

• Does the Hazardous Waste Control Law clearly
  state the legislative intent?
• What is it?
• Does the legislature provide enough guidance on
  the definition of hazardous waste?
• Do they have to list all the possible wastes?
• What other standards guide DEQ?

25
Applying the Schwegmann Test

• Does the Hazardous Waste Control Law clearly
  state the legislative intent?
• What is it?
• Does the legislature provide enough guidance on
  the definition of hazardous waste?
• Do they have to list all the possible wastes?
• What other standards guide DEQ?

26
Due Process Considerations

• Must follow the APA
• What other review is available?

27
Court's Ruling

• May an agency regulation be used as a standard to
  prosecute a crime?
• Based on this case, do you think the original
  court in Adams was correct in ruling that he
  could not be prosecuted under the standards of
  the sanitary code?

28
The Mullet Case - State v. Alfonso, 753 So.2d 156
(La. 1999)

• Key question has the legislature given the
  agency the authority to make rules about
  reporting the catch of mullet, as opposed to
  rules about the manner of catching mullet?
• Is the real issue the disproportionate penalty -
  lifetime ban from mullet fishing as a penalty for
  violating the reporting law?

29
Schwegmann Test

• delegation of authority to an administrative
  agency is constitutionally valid if the enabling
  statute (l) contains a clear expression of
  legislative policy (2) prescribes sufficient
  standards to guide the agency in the execution of
  that policy and (3) is accompanied by adequate
  procedural safeguards to protect against abuse of
  discretion by the agency.

30
(l) contains a clear expression of legislative
policy

• What did the legislature seem to want to control?
• Would reporting be a reasonable part of that
  process?

31
(2) prescribes sufficient standards to guide the
agency in the execution of that policy

• Are there any legislative guidelines as to what
  "taking mullet" means?
• Where did the court find an expression of
  legislative intent to not impose Draconian
  penalties for fishing law violations?

32
(3) is accompanied by adequate procedural
safeguards to protect against abuse of discretion
by the agency

• Although the State contends that the Commission
  enacted the instant regulation after a public
  hearing in accordance with the Administrative
  Procedures Act (APA), La. Rev. Stat. 49950-971,
  this hearing was not mandated by Section 333A.
• Unlike the enabling provision upheld in State v.
  All Pro Paint and Body Shop, Inc., supra at pp.
  19-20, 639 So. 2d at 720, Section 333A neither
  refers to the APA nor prescribes any procedures
  to allow for legislative review.
• Is the court saying that the APA is not the
  default?

33
Declaratory Judgment

• More complicated than I thought
• Circuits use the same test, but apply it very
  differently

34
Grounds for Declaratory Judgment

• 1) the rule is unconstitutional
• 2) the rule exceeds the statutory authority of
  the agency
• 3) the rule was adopted without substantial
  compliance with rulemaking procedures.

35
Exhaustion of Agency Remedies

• An action for a declaratory judgment under this
  Section may be brought only after the plaintiff
  has requested the agency to pass upon the
  validity or applicability of the rule in question
  and only upon a showing that review of the
  validity and applicability of the rule in
  conjunction with review of a final agency
  decision in a contested adjudicated case would
  not provide an adequate remedy and inflict
  irreparable injury.

36
What if the Agency will not respond to the
request to review the rule?

• Must ask the agency to review the rule
• If the agency has no procedure to review rules
  and will not act on your request, it is easier to
  convince the court to review the case
• Bueto v. Video Gaming Div., Office of State
  Police, Dept. of Public Safety, 637 So.2d 544, 94
  0334 (La.App. 1 Cir. 3/4/94)

37
What About Waiting for the Adjudication?

• Must show that the decision in an adjudication
  would not be an adequate remedy
• What if the agency does not have the authority to
  pay you damages and that is what you are seeking?
• Irreparable Injury
• Just like in injunctions
• Is the possible sanction for violating the rule
  so severe that you do not dare wait and see?

38
Is LA Different from the Federal Rule?

• For individuals, Louisiana looks like the federal
  rule, which provides for only very limited
  declaratory judgments
• In Wooley, the court left open the option for the
  Agency to seek a declaratory judgment, but it is
  not clear what the standards will be for that -
  stay tuned.

39
LA APA on Rule Making

• http//biotech.law.lsu.edu/cases/la/adlaw/apa/LAAP
  A_c.htm
• What is our Chadha problem?
• http//biotech.law.lsu.edu/cases/la/adlaw/apa/LAAP
  A26.htm

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Introduction to Judicial Review

• What is the purpose of judicial review?
• What are the competing uses of review?
• Stop agency action
• Force agency action
• Why may many groups, such as environmentalists,
  regret the current litigation strategy to use the
  courts to limit agency action?