Delegation of Rulemaking Authority in
Louisiana
State v. Broom, 439 So. 2d 357 (1983)
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The LA Supreme Court incorporates Chadha
analysis into LA law
This is the extreme case for delegation:
 Delegation of the authority to define crimes
Facts
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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
The Delegation
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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."
Was this an Unconstitutional Delegation of
Legislative Authority?
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... 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.
Do They Really Mean It?
Adams v. State Dep't of Health, 458 So.2d
1295 (La. 1984)
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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?
Declaratory Judgment Action
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http://biotech.law.lsu.edu/cases/la/adlaw/apa/LAA
PA19.htm
Who filed this?
What is he claiming?
Why did the trial court declare the sanitary code
unconstitutional?
The Delegation
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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.
The Guidance
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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.
What Would the Trial Court Require?
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What additional guidance could the legislature
provide?
What are the issues with detailed legislative
guidance for the sanitary code?
Schwegmann Brothers Rule
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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?
The Sanitary Code
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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?
Vagueness
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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?
Res Judicata
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What about plaintiff's claims that the earlier case
striking the criminal penalties is res judicata for
the civil enforcement?
State v. Taylor, 479 So.2d 339 (La.1985)
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Prosecuted for bringing contraband into the
prison
What was his challenge to the law?
The Statute
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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.
The Previous Statute
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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?
The Court's Ruling
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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?
State v. All Pro Paint and Body Shop, Inc.,
639 So.2d 707 (La 1994)
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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?
Revised Schwegmann Test
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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.
The Court of Appeals One Step Test
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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?
Broom Revisited
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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?
Applying the Schwegmann Test
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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?
Applying the Schwegmann Test
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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?
Due Process Considerations
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Must follow the APA
What other review is available?
Court's Ruling
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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?
The Mullet Case - State v. Alfonso, 753
So.2d 156 (La. 1999)
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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?
Schwegmann Test
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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.
(l) contains a clear expression of
legislative policy
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What did the legislature seem to want to control?
Would reporting be a reasonable part of that
process?
(2) prescribes sufficient standards to guide the
agency in the execution of that policy
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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?
(3) is accompanied by adequate procedural
safeguards to protect against abuse of
discretion by the agency
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[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?
Declaratory Judgment
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More complicated than I thought
Circuits use the same test, but apply it very
differently
Grounds for Declaratory Judgment
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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.
Exhaustion of Agency Remedies
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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.
What if the Agency will not respond to the
request to review the rule?
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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)
What About Waiting for the Adjudication?
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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?
Is LA Different from the Federal Rule?
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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.
LA APA on Rule Making
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http://biotech.law.lsu.edu/cases/la/adlaw/apa/LAA
PA_c.htm
What is our Chadha problem?
http://biotech.law.lsu.edu/cases/la/adlaw/apa/LAA
PA26.htm
Introduction to Judicial Review
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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?