A Wolf In Sheep's Clothing: Dressing-Up Substantive .
Louisiana Law ReviewVolume 67 Number 2Winter 2007A Wolf in Sheep's Clothing: Dressing-UpSubstantive Legislation to Trigger the InterpretiveException to Retroactivity Violates ConstitutionalPrinciplesRebecca Barrett HallRepository CitationRebecca Barrett Hall, A Wolf in Sheep's Clothing: Dressing-Up Substantive Legislation to Trigger the Interpretive Exception to RetroactivityViolates Constitutional Principles, 67 La. L. Rev. (2007)Available at: s2/10This Comment is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted forinclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kreed25@lsu.edu.
A Wolf in Sheep's Clothing: Dressing-Up SubstantiveLegislation to Trigger the Interpretive Exception toRetroactivity Violates Constitutional PrinciplesA Wolf found great difficulty in getting at the sheep owingto the vigilance of the shepherd and his dogs. But one dayit found the skin of a sheep that had been flayed and thrownaside, so it put it on over its own pelt and strolled downamong the sheep. The Lamb that belonged to the sheep,whose skin the Wolf was wearing, began to follow theWolf in the Sheep's clothing; so, leading the Lamb a littleapart, he soon made a meal off her, and for some time hesucceeded in deceiving the sheep, and enjoying heartymeals. Appearances are deceptive.Despite jurisprudential efforts to protect the interpretiveexception to retroactivity from legislative abuse, pronged tests andchecklists cannot prevent attempts to squeeze substantivelegislation into the law under the guise of interpretive legislation.The trappings of retroactive application that follow interpretiveclassification present an apparently irresistible opportunity tocreate substantive law that could receive such desirable effectswith a mere moniker. Retroactive application of substantive law,even if it is presented as interpretive, impinges upon the judicialrole of interpretation and violates constitutional principles.I. INTRODUCTIONLouisiana modifies the rule against retroactive legislation witha civilian exception. Instead of universally prohibiting retroactivelegislation, Louisiana grants a special exception for interpretivelegislation.2 This exception recognizes that interpretive legislationCopyright 2007, by LOUISIANA LAW REVIEW.1. Aesop, The Wolf in Sheep's Clothing, in AESOP'S FABLES 102-03(Thomas James & George Tyler Townsend trans., The Franklin Library 1982),available at TheWolf inSheepsClothing.pl.html.2. LA. Cwv. CODE ANN. art. 6 (2006) ("In the absence of contrarylegislative expression, substantive laws apply prospectively only. Procedural
600LOUISIANA LA WREVIEW[Vol. 67is not "new" legislation as it merely explains or clarifies prior law.As such, retroactive application of interpretive legislation simplyapplies the original law.Recently, the Louisiana Supreme Court has found theinterpretive exception to the rule against retroactivity to beunconstitutional in certain circumstances. 3 The reasoning behindthe ruling is fundamental: because the Louisiana Constitutionspecifically entrusts the judiciary with the authority to interpret thelaws, nominally "interpretive" legislation promulgated by thelegislature violates separation of powers when the legislation istruly substantive. a The legislative branch may not exceed itson substantive legislation topower by affixing an interpretive label5trigger the exception to retroactivity.Retroactive laws undermine the ability of'citizens to rely ontheir rights. However, the policy of encouraging such reliancedoes not justify casual disregard for this deep-rooted civilianexception. While the legislature should not usurp the judiciary'sinterpretive power, the interpretive exception should not bearbitrarily dismissed through judicial ruling. The interpretiveexception to retroactivity should remain a component of Louisianalaw since it is a recognized pillar of the civilian tradition.This article demonstrates improved classification methods forinterpretive and substantive legislation to allow propercharacterization and prevent constitutional violations. To developthis classification scheme, Part II examines the evolution of theinterpretive legislation exception to the rule against retroactivity byreviewing the policy considerations that have concernedand interpretative laws apply both prospectively and retroactively, unless thereis a legislative expression to the contrary.").3. Unwired Telecom Corp. v. Parish of Calcasieu, 903 So. 2d 392 (La.2005) (on rehearing). The scope of this analysis does not encompass theretroactive effect of judicial opinions, which receive a different classificationdetermination. See Lovell v. Lovell, 378 So. 2d 418, 421-22 (La. 1979). Thiscomment will focus on the problems associated with the classification andretroactive application of legislative enactments.4. LA. CONST. art. V, § 1 (defining judicial power); LA. CONST. art. II, § 2(explaining that no branch may exercise the power of any other).5. Id.art. II, § 2.
2007]COMMENTSlawmakers and judicial figures when drafting and applying thecontrolling provisions.Part III derives a framework ofcharacteristics for an accurate distinction between substantive andinterpretive legislation so that temporal effects are constitutionallyapplied. Finally, Part IV concludes the analysis by considering theconstitutional benefits and ramifications resulting from a clarifiedsorting scheme.II.BACKGROUND: RECOGNIZING CONSTITUTIONAL PROBLEMS ANDUNCOVERING THE REASONING BEHIND EXISTING CLASSIFICATIONPOLICIESThe interpretive exception violates due process and separationof powers principles when it is used to slip substantive law throughthe legislative cracks so that it may receive retroactive application. 6A. Legislative Abuse: ConstitutionalConsequencesGovernmental powers are compartmentalized so that eachbranch of government derives power from a different article of theConstitution.7 This discrete demarcation of authority allowsexecution of governmental power as the Framers intended sinceeach branch has a specific and complementary role. In accordancewith the United States Constitution, the Louisiana Constitutionalso follows the principle of separation of powers.8 The executivebranch has the power to carry out the law.9 The judicial branch hasthe exclusive authority to interpret the law by applying it toindividuals.' 0 The legislative branch has the sole authority to write6. Unwired Telecom, 903 So. 2d at 404.7. See U.S. CONST. arts. I-Ill.8. LA. CONST. art. II, § 2 ("Except as otherwise provided by thisconstitution, no one of these branches, nor any person holding office in one ofthem, shall exercise power belonging to either of the others.").9. U.S. CONST. art. II.10. Id. art. III; Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) ("Itis emphatically the province and duty of the judicial department to say what thelaw is. Those who apply the rule to particular cases, must of necessity expoundand interpret that rule."); Francis Bacon, Of Judicature, in 12 THE WORKS OFFRANCIs BACON 265 (James Spedding et al. eds., 1900) ("Judges ought to
LOUISIANA LA W REVIEW[Vol. 67the legislation that becomes law."Within this penumbra ofauthority, the legislature may pass interpretive legislation, whichclarifies the meaning of an original law 12 and, thus, appliesretroactively.' 3 Since the legislature only has the limited authorityto elucidate previously enacted laws, legislation labeled"interpretive" can infringe on judicial powers when used toadjudicate a case' 4 or alter existing rights and duties.' 5B. The Civilian Exception: FrenchFoundation of LouisianaTraditionThe interpretive exception to the rule against retroactivity is along-standing component of the civilian tradition.16 As a civilianjurisdiction in comparative infancy, Louisiana was heavilyinfluenced by French laws. 17 Accordingly, the addition of theinterpretive exception in Louisiana law reflects the French civillaw exception to retroactivity for interpretive legislation. 18 Frenchscholarly doctrine illustrates the utility and importance of theremember that their office is jus dicere, and not jus dare; to interpret law, andnot to make law, or give law.").11. U.S. CONST. art. I; LA. CONST. art. III, § 1 ("The legislative power ofthe state is vested in a legislature . . . ."); P. Raymond Lamonica & Jerry G.Jones, LEGISLATIVE LAW AND PROCEDURE § 2. 1, in 20 LOUISIANA CIVIL LAWTREATISE 6, 10 (2004) ("'Legislative power' is primarily the power to makelaws.").12. LA. CIV. CODE ANN. art. 6 cmt. (d) (2006); Marcel Planiol, 1 CIVIL LAWTREATISE No. 251 (La. State Law Inst. trans., 1959) (1939).13. LA. CIV. CODE ANN. art. 6 (2006).14. Unwired Telecom Corp. v. Parish of Calcasieu, 903 So. 2d 392, 404-05(La. 2005) (on rehearing).15. St. Paul Fire & Marine Ins. Co. v. Smith, 609 So. 2d 809, 820 (La.1992). Legislative power is abused when it is used to give "the name of'interpretive law' to laws which. contain new provisions." Planiol, supra note 12.16. The interpretive exception to retroactive application is codified in article6 of the Louisiana Civil Code. See LA. CIV. CODE ANN. art. 6 (2006). Article 6"reproduces the substance of Article 8 of the Louisiana Civil Code of 1870 andaccords with Louisiana jurisprudence interpreting the source provision. It doesnot change the law." LA. CIV. CODE ANN. art. 6 cmt. (a) (2006).17. J.-R. Trahan, The ContinuingInfluence of le Droit Civil and el DerechoCivil in the Private Law of Louisiana, 63 LA. L. REV. 1019, 1026-36 (2003).18. Louisiana laws reflect their French counterpart. Id.at 1052.
2007]COMMENTSinterpretive exception as a civilian and, thus, a Louisianatradition.' 9In one of the earliest examples of retroactive legislation, theFrench legislature passed new successions laws immediately afterthe French Revolution to instill parity into French law. 20 Toexpedite the absorption of the laws in response to demands ofsocial equality, the laws were retroactively applied to allsuccessions in the last five years-including settled and partitionedsuccessions. 21 Today, the U.S. Constitution protects against theretroactive alteration or creation of rights.22 Nevertheless, therudimentary historical reasoning behind retroactivity remainscurrent with modem policy: when legislation fixes itself torepresent the "correct" law, it should apply retroactively. 23As one author elucidates, the interpretive exception satisfies animportant function of the Louisiana legal system and "canpotentially affect any substantive area of the law and any numberof rights . . 24 The all-encompassing consequences of temporaleffects emphasize the necessity of proper application for every areaof substantive law. According to French scholarly doctrine,interpretive legislation indicates the law's original purpose withprecision and applies retroactively "to resolve difficultiesconcerning acts and effects accomplished before theirpromulgation and under the dominion of the interpreted law." 25 Asa component of our civilian tradition, the interpretive exceptionshould be preserved in the law with integrity, avoiding legislativeexploitation.19. Gabriel Marty & Pierre Raynaud, 1 DROIT CIVIL: INTRODUCTIONGENERALE A L'ETUDE DU DROiT 107, 192 (J.-R. Trahan trans., 1998) (2d ed.1972).20. Planiol, supra note 12.21. Id.22. See U.S. CONST. amend. V, and U.S. CONST. amend. XIV, § 1(legislative power is limited by due process). See also LA. CONST. art. I, § 2.23. In compliance with constitutional principles, interpretive laws shouldreceive retroactive application only when they do not impermissibly alter avested right. See infra Part III for a detailed discussion.24. Jackie M. McCreary, Comment, Retroactivity of Laws: An Illustrationof Intertemporal Conflicts Law Issues Through the Revised Civil Code Articleson Disinherison,62 LA. L. REV. 1321, 1349 (2002).25. Marty & Raynaud, supra note 19, at 192.
604LOUISIANA LAW REVIEW[Vol. 67C. Existing Legal Regime: ClassificationRules and JudicialTechniquesLouisiana Civil Code article 6 states: "In the absence ofcontrary legislative expression,substantive laws applyprospectively only. Procedural and interpretative laws apply bothprospectively and retroactively, unless there is a legislativeexpression to the contrary." 26 Even though article 6 contains areservation for retroactive application of substantive law upon anexpression of legislative intent, such application must comply withconstitutional principles.27The general rule against retroactivity binds substantive laws,but grants an exception for interpretive legislation. Laws receivingretroactive application affect new cases and those that are notcausae finitae (extinguished causes).28 Civilian scholars explainretroactive restrictions as follows: "One can justify this solution bythe idea . that the trouble born by a retroactive law will be all themore grave as it will revive difficulties born from the opposition ofinterests that have been definitively settled. 29 Once concluded, anissue should not be disrupted-despite subsequent changes in thelaw.Final judgments should be upheld in the interest ofdiscouraging unnecessary litigation and protecting the parties'established reliance on the resolved rule. Delicate application ofretroactive laws in accordance with these principles prevents dueprocess violations and preserves their beneficial function.26.LA. CIv. CODE ANN. art. 6 (2006). Procedural legislation also receivesretroactive application, but it is beyond the scope of this comment. LA. REV.STAT. ANN. § 1:2 (2003) (proscribing retroactive application of any section ofthe revised statutes unless such application is expressly stated).27. The Constitution is the supreme law of the land and preempts any lawsthat breach its principles. U.S. CONST. art. VI, § 1, cl. 2. Thus, a law cannot beapplied retroactively, despite legislative intention reserved by article 6, if thatapplication violates constitutional principles.28. Kenneth M. Murchison & J.-R. Trahan, WESTERN LEGAL TRADITIONSAND SYSTEMS: LOUISIANA IMPACT 227 (rev. ed. 2003) (citing Patrice Level,ESSAI SUR LES CONFLITS DE LOIS DANS LE TEMPS 33 n.19, 161-62 n.90 (J.-R.Trahan trans., 1999) (1959)) (a matter is causae finitae when it receivesjudgment, is settled by compromise, or expires by prescription).29.Id.
2007]COMMENTS6051. Legislative IntentLegislative interpretation under article 6 requires a two-partinquiry: (1) has the legislature commanded retrospective or onlyprospective application; and (2) if not, is the law substantive,procedural, or interpretive? 30 Thus, the initial step in classificationdetermines and defers to expressed legislative intent for temporalapplication. 3 1 Statutory construction indicates the lawmaker'soriginal objectives for the forthcoming law. 32 Express legislativedeclaration on the intended temporal application of a lawsimplifies classification. When the legislature does not clearlyexpress temporal desires, a court must closely read the language ofthe law to infer its implied classification and corresponding effects.A common law scholar, noted for studies of statutory construction,explains that future tense words "such as 'shall' or 'hereafter"'indicate prospective application, while the past tense "such as 'has33been' or 'heretofore' clearly signifies retrospective application.Despite these seemingly simple inferences, conflicting opinionsregarding legislative intent complicate the classification process.3430. Pierce v. Hobart Corp., 939 F.2d 1305, 1308 (5th Cir. 1991).31. Reichert v. State, 694 So. 2d 193, 199 (La. 1997). See generallyFrangois Gdny, METHODE D'INTERPRETATION ET SOURCES EN DROIT PRIvtPOSITIF (La. State Law Inst. trans., 2d ed. 1954).32. Dumas v. State, 828 So. 2d 530, 536 (La. 2002) ("[T]he starting pointfor the interpretation of any statute is the language of the statute itself."). Seealso Josef Kohler, JudicialInterpretationof EnactedLaw, in SCIENCE OF LEGALMETHOD 187-201 (Ernest Bruncken & Layton B. Register trans., Sentry Press1969) (1917) (explaining reasons and methods of legal interpretation).33. F. McCaffrey, STATUTORY CONSTRUCTION § 65 (1953) (quoting Black,CONSTRUCTION & INTERPRETATION OF LAWS (2d ed. 1911)).AlthoughMcCaffrey is not a civilian scholar, his work on statutory construction equallyapplies to civilian jurisdictions. See St. Paul Fire & Marine Ins. Co. v. Smith,609 So. 2d 809, 817 (La. 1992) (using McCaffrey's rules to determine that adelayed effective date is evidence of intent for prospective application);Simmesport State Bank v. Scallan, 134 So. 2d 391, 394 (La. App. 3d Cir. 1961)(citing McCaffrey's rules to forgo interpretation when the statutory language isclear).34. See, e.g., Willis-Knighton Med. Ctr. v. Caddo-Shreveport Sales & UseTax Comm'n, 903 So. 2d 1071, 1085-86 (La. 2005) (discussing the difficulty indetermining legislative intention and concluding that learned scholars disagreeon the relationship between the two paragraphs of article 466, namely, whetherthe legislature intended them to be read disjunctively or inter-dependently).
606LOUISIANA LAW REVIEW[Vol. 67Determinable legislative intent for temporal application that doesnot constitute a constitutional violation completes the classificationinquiry, but uncertain or unconstitutional legislative intentnecessitates further analysis.352. Interpretive or Substantive?: Applying JurisprudentialTestsWhen legislative intent is not apparent, courts must usecircumstantial evidence to infer legislative intent regardingtemporal effect. 36 Judicial analysis of legislation classification37often produces learned discussion and well-intended remedies.Unfortunately, the inherently subjective analysis by different38judges reveals the ambiguity and insufficiency of existing tests.St. Paul Fire & Marine Insurance Co. v. Smith developed anoft-cited 39 and equally criticized 4 test to resolve a workers'compensation claim involving the alteration of a pertinent statute. 4'In an established line of cases, courts had interpreted workers'compensation laws to grant employers priority in the receipt ofthird party damage awards only for an employee's lost wages ormedical expenses, and not for other damages, such as pain andsuffering. In contravention of judicial interpretation, subsequent35. Bourgeois v. A.P. Green Indus., Inc., 783 So. 2d 1251, 1258 (La. 2001).36. See LA. CIV. CODE ANN. art. 10 (2006); Pierce v. Hobart Corp., 939F.2d 1305, 1308 (5th Cir. 1991).37. St. Paul, 609 So. 2d 809.38. J.-R. Trahan, Time for a Change: A Call to Reform Louisiana'sIntertemporalConflicts Law (Law ofRetroactivity of Laws), 59 LA. L. REV. 661,759 (1999) (describing conflicting conclusions of the judges on the LouisianaSupreme Court in Chance v. American Honda Motor Co., 635 So. 2d 177 (La.1994)). "Both the plurality and the concurring minority were able, evidently ingood faith, to justify their respective characterization determinations byreference to one definition or the other. It would seem, then, that even inpracticethe line between the two categories is hopelessly blurred." Id.39. Unwired Telecom Corp. v. Parish of Calcasieu, 903 So. 2d 392, 403(La. 2005) (on rehearing); Segura v. Frank, 630 So. 2d 714, 723 (La. 1994);Bourgeois, 783 So. 2d at 1257.40. Trahan, supra note 38, at 760-62 (asserting that the factors areambiguous, circular, and insufficient).41. St. Paul, 609 So. 2d at 819 (candidly admitting that the distinctionbetween substantive and interpretive legislation is indistinct).42. Id. at 811-13.
2007]COMMENTS607legislation allowed the employer first-payment rights from all ofan employee's damage awards, including awards for pain andsuffering.4 3 Although lower courts allowed retroactive applicationof the new law, the St. Paul court found that the legislativealteration imper
A Wolf in Sheep's Clothing: Dressing-Up Substantive Legislation to Trigger the Interpretive Exception to Retroactivity Violates Constitutional Principles A Wolf found great difficulty in getting at the sheep owing to the vigilance of the shepherd and his dogs. But one day it found the skin of
the wolf Part 1 the sheep’s clothing Part 2 are there more wolves? Part 3 how wolves become sheep Part 4. An Incremental Approach to Grammatical Description nt ecremetal complex simple Indonesian English. A Wolf in Sheep’s Clothing: David Gil David Gil Valency Clas
know the important points to consider when judging sheep. 2. Show you how to determine if a particular animal possesses these important traits. First, we need to learn about the parts of the sheep. Other than the names of the parts of the body, judging sheep and judging beef are very similar - sheep just come in a smaller package. Parts of a Sheep
forward growing. All pedigree registered Jacob sheep have two or four horns. If you are buying an older sheep have a good look at its feet and teeth - a sheep has only one row of teeth on the bottom jaw, and these must meet the soft pad of the upper jaw when the mouth is closed. Check that the teeth are all firm as a sheep is dependent
The Wolf in Sheep's Clothing A Wolf found great difficulty in getting at the sheep owing to the vigilance of the shepherd and his dogs. But one day it found the skin of a sheep that had been flayed and thrown aside, so it put it on over its own pelt a nd strolled down among the sheep. The Lamb that belonged to the she
20 13.5059 188.05 S Connor 430 389 WW Wolf 21 13.5060 188.05 P Logan 425 244 BH Wolf 22 13.5091 188.00 M McKayla 423 467 WW Wolf 23 13.5095 188.00 R Zavier 426 207 GR Wolf 24 13.5561 187.35 C Bryce 407 110 GR Wolf 25 13.5757 187.08 S Mason 431 207 GR Wolf 26 13.5810 187.01 H Chase 4
The pastor is like the sheep dog, nipping at the heels of those sheep who need to meet the Good Shepherd. Sheep beget sheep. So, go forth and start bringing in more sheep. And remem-ber all of the foundation “stuff.” It’s important! God bless! Rev. Bev. THE GOOD NEWS 2 FEBRUARY
Sheep Brain Dissection Guide 4. Find the medulla (oblongata) which is an elongation below the pons. Among the cranial nerves, you should find the very large root of the trigeminal nerve. Pons Medulla Trigeminal Root 5. From the view below, find the IV ventricle and the cerebellum. Cerebellum IV VentricleFile Size: 751KBPage Count: 13Explore furtherSheep Brain Dissection with Labeled Imageswww.biologycorner.comsheep brain dissection questions Flashcards Quizletquizlet.comLab 27- Dissection of the Sheep Brain Flashcards Quizletquizlet.comSheep Brain Dissection Lab Sheet.docx - Sheep Brain .www.coursehero.comLab: sheep brain dissection Questions and Study Guide .quizlet.comRecommended to you b
A Comprehensive Thermal Management System Model for Hybrid Electric Vehicles by Sungjin Park A dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy (Mechanical Engineering) in The University of Michigan 2011 Doctoral Committee: Professor Dionissios N. Assanis, Co-Chair Assistant Professor Dohoy Jung, Co-Chair Professor Huei Peng Professor .
