Administrative Practice under the 1974 Constitution: A Silver Anniversary Review
| Author | David A. Marcello |
| Position | Executive Director, The Public Law Center |
Executive Director, The Public Law Center; B.A., Williams College; J.D., Tulane Law School. The author gratefully acknowledges a research grant from Loyola School of Law and the research assistance of Suanne Gay. Thanks also to Tulane Law School's former Dean John Kramer, who received a draft of this article and recommended several improvements.
Most of what we commonly identify as "administrative law" is elaborated through statutes and regulations, not as a direct expression of constitutional authority. Accordingly, this analysis of administrative practice under the 1974 Constitution necessarily addresses not only constitutional language but also includes statutory and regulatory references.
The article begins with a look at two of the most significant administrative reforms accomplished by the 1974 Constitution-increased openness in administrative practice and reorganization of the executive branch of state government. It then examines rulemaking under the Administrative Procedure Act1 (with particular focus on the legislative veto in Louisiana) and briefly considers four new developments in the adjudication process since 1974. The article next suggests several innovations in administrative practice that might comfortably be accommodated within the current constitutional framework and concludes with an assessment of the road traveled by administrative practice since adoption of the 1974 Constitution.
A new provision in the 1974 Constitution established a presumption of openness in government and laid a solid foundation for vigorous open meetings2 and public records3laws by providing that: "[n]o person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law."4 This new provision guaranteed citizens a right not found in the U.S. Constitution.5 In effect, it established a "default" provision of openness, a constitutional "presumption that public meetings . . . are open to the public unless a specific law denies access."6 This constitutional guarantee "opens up" the Open Meetings Act in at least two respects. First, a "convening" that may not be within the defined term "meetings" but that does fall into the undefined broader realm of "deliberations"7 must be opened to the public. Second, entities expressly covered by the definition of "public body" are required by statutory mandate of the Open Meetings Act to open their meetings to the public, but other entities neither encompassed in nor excluded by statute from the definition8 could be required by constitutional mandate to open their deliberations to the public.
The new constitution mandated for the first time9 that agency law should be codified and accessible to the public, requiring that: "[r]ules, regulations, and procedures adopted by all state administrative and quasi-judicial agencies, boards, and commissions shall be published in one or more codes and made available to the public."10 This provision supported various public information requirements already found in the Administrative Procedure Act.11 The Louisiana Administrative Code arose out of this mandate12 and has been continuously revised and supplemented by the Office of State Register13 to encompass most of the state's regulations.
Even more significant than the changes in text are the changes in context since 1974. Technology and the Internet have probably done more than any statutory revision to enhance the public's access to administrative regulations. The Louisiana Register and the Louisiana Administrative Code are both available online at the website for the Office of the State Register.14 Federal regulations published in the Federal Register and the Code of Federal Regulations can now be found online as well.15 The regulations of numerous states are also available electronically.16
Access to agency regulations is still a problem in Louisiana, because parts of the Louisiana Administrative Code are either incomplete or not regularly updated. The Associate Director of the Law Library of Louisiana recently highlighted some shortcomings:
The hardest material to find concerns Public Health because the compilation on the web is not completed and the paper version has not been republished since 1984. It is also difficult to find Bulletins from the Department of Education. In these cases, a researcher should check an agency website or call the agency to find the current regulations.17
When I began teaching agency rulemaking in 1989, I routinely advised students who were seeking out-of-state regulations to call law librarians in that state and ask them to copy and fax the regulations, which at that time were available only in hard copy. In the Age of the Internet and at the dawn of the proverbial New Millennium, however, such machinations should no longer be necessary. Requiring the public to check an agency's website or to phone the agency for a copy of current regulations seems both unduly burdensome and flatly inconsistent with the APA's statutory mandate that "[t]he Louisiana Administrative Code shall be supplemented or revised as often as necessary and at least once every two years."18
Constitutional principles of openness also extend to the openness of courts for judicial review of administrative agency actions. Delegates to the 1973 Constitutional Convention ("CC 73") preserved the 1921 Constitution's assurance of "Access to Courts"19 and went further with a new "Right to Judicial Review" guaranteeing the following protections:
No person shall be subjected to imprisonment or forfeiture of rights or property without the right of judicial review based upon a complete record of all evidence upon which the judgment is based. This right may be intelligently waived. The cost of transcribing the record shall be paid as provided by law.20
This provision, which had no predecessor in the 1921 Constitution, originated in the debate regarding "Rights of the Accused."21 Although most subsequent jurisprudence has arisen in the context of criminal proceedings, the language can also be invoked to support the right of judicial review from adverse administrative decisions.22 The comments of one CC 73 delegate, who spoke in opposition to the proposed amendment before it was approved, expressly recognized its applicability to judicial review of agency decisions:
As I read this amendment, this amendment will provide for judicial review of all administrative agency determinations where anybody loses any rights for which he may be an applicant, or any rights that he may possess. . . . And by adopting this amendment, you will be providing for judicial review of, in my opinion, all administrative agency determinations.23
These constitutional guarantees of "Access to Courts" and the "Right to Judicial Review" provide parties who have been disappointed in the administrative process an opportunity to air their grievances further in the courts.
Reorganization of the executive branch of state government constituted one of the most significant developments in administrative practice arising out of the 1974 Constitution. An important development, it certainly was, but "interesting" may not be the first word that comes to mind for most readers. A drone's sense of duty impels me to burden this article with an account of reorganization, but the reader who is not in love with bureaucracy should feel free to trip lightly past this section.
The 1921 Constitution and its numerous amendments overloaded the state's organic law with far too many details about administrative entities such as port and highway commissions24 or levee boards.25 The 1921 Constitution also imposed few limitations on the number of agencies, boards, and commissions; as a consequence, they proliferated at some cost to the state's taxpayers.26 By the late 1960s it had become clear to the state's pre-eminent governmental research organization that "Louisiana is far out of line with other states in the number of state agencies. No state has as many, and the national average was only about one-fourth the number in Louisiana. Of the 45 states for which...
To continue reading
Request your trial