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/LAAPA19.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. 40:5. The promulgation of this sanitary code shall be accomplished in strict accordance with the provisions of the Administrative Procedure Act, R.S. 49:951, 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 • [A]lthough 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. 49:950-971, 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/LAAPA_c.htm • What is our Chadha problem? • http://biotech.law.lsu.edu/cases/la/adlaw/apa/LAAPA26.htm

40. 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?