A Wolf in Sheep's Clothing: Dressing-Up Substantive Legislation to Trigger the Interpretive Exception to Retroactivity Violates Constitutional Principles

Author:Rebecca Barrett Hall

I. Introduction. II. Background: Recognizing Constitutional Problems and Uncovering the Reasoning Behind Existing Classification Policies. A. Legislative Abuse: Constitutional Consequences. B. The Civilian Exception: French Foundation of Louisiana Tradition. C. Existing Legal Regime: Classification Rules and Judicial Techniques. 1. Legislative Intent. 2. Interpretive or Substantive?: Applying... (see full summary)


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    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 and strolled down among the sheep. The Lamb that belonged to the sheep, whose skin the Wolf was wearing, began to follow the Wolf in the Sheep's clothing; so, leading the Lamb a little apart, he soon made a meal off her, and for some time he succeeded in deceiving the sheep, and enjoying hearty meals. Appearances are deceptive.1

Despite jurisprudential efforts to protect the interpretive exception to retroactivity from legislative abuse, pronged tests and checklists cannot prevent attempts to squeeze substantive legislation into the law under the guise of interpretive legislation. The trappings of retroactive application that follow interpretive classification present an apparently irresistible opportunity to create substantive law that could receive such desirable effects with a mere moniker. Retroactive application of substantive law, even if it is presented as interpretive, impinges upon the judicial role of interpretation and violates constitutional principles.

I Introduction

Louisiana modifies the rule against retroactive legislation with a civilian exception. Instead of universally prohibiting retroactive legislation, Louisiana grants a special exception for interpretive legislation.2 This exception recognizes that interpretive legislationPage 600 is not "new" legislation as it merely explains or clarifies prior law. As such, retroactive application of interpretive legislation simply applies the original law.

Recently, the Louisiana Supreme Court has found the interpretive exception to the rule against retroactivity to be unconstitutional in certain circumstances.3 The reasoning behind the ruling is fundamental: because the Louisiana Constitution specifically entrusts the judiciary with the authority to interpret the laws, nominally "interpretive" legislation promulgated by the legislature violates separation of powers when the legislation is truly substantive.4 The legislative branch may not exceed its power by affixing an interpretive label on substantive legislation to trigger the exception to retroactivity.5

Retroactive laws undermine the ability of citizens to rely on their rights. However, the policy of encouraging such reliance does not justify casual disregard for this deep-rooted civilian exception. While the legislature should not usurp the judiciary's interpretive power, the interpretive exception should not be arbitrarily dismissed through judicial ruling. The interpretive exception to retroactivity should remain a component of Louisiana law since it is a recognized pillar of the civilian tradition.

This article demonstrates improved classification methods for interpretive and substantive legislation to allow proper characterization and prevent constitutional violations. To develop this classification scheme, Part II examines the evolution of the interpretive legislation exception to the rule against retroactivity by reviewing the policy considerations that have concernedPage 601 lawmakers and judicial figures when drafting and applying the controlling provisions. Part III derives a framework of characteristics for an accurate distinction between substantive and interpretive legislation so that temporal effects are constitutionally applied. Finally, Part IV concludes the analysis by considering the constitutional benefits and ramifications resulting from a clarified sorting scheme.

II Background: Recognizing Constitutional Problems and Uncovering the Reasoning Behind Existing Classification Policies

The interpretive exception violates due process and separation of powers principles when it is used to slip substantive law through the legislative cracks so that it may receive retroactive application.6

A Legislative Abuse: Constitutional Consequences

Governmental powers are compartmentalized so that each branch of government derives power from a different article of the Constitution.7 This discrete demarcation of authority allows execution of governmental power as the Framers intended since each branch has a specific and complementary role. In accordance with the United States Constitution, the Louisiana Constitution also follows the principle of separation of powers.8 The executive branch has the power to carry out the law.9 The judicial branch has the exclusive authority to interpret the law by applying it to individuals.10 The legislative branch has the sole authority to writePage 602 the legislation that becomes law.11 Within this penumbra of authority, the legislature may pass interpretive legislation, which clarifies the meaning of an original law12 and, thus, applies retroactively.13 Since the legislature only has the limited authority to elucidate previously enacted laws, legislation labeled "interpretive" can infringe on judicial powers when used to adjudicate a case14 or alter existing rights and duties.15

B The Civilian Exception: French Foundation of Louisiana Tradition

The interpretive exception to the rule against retroactivity is a long-standing component of the civilian tradition.16 As a civilian jurisdiction in comparative infancy, Louisiana was heavily influenced by French laws.17 Accordingly, the addition of the interpretive exception in Louisiana law reflects the French civil law exception to retroactivity for interpretive legislation.18 French scholarly doctrine illustrates the utility and importance of thePage 603 interpretive exception as a civilian and, thus, a Louisiana tradition.19

In one of the earliest examples of retroactive legislation, the French legislature passed new successions laws immediately after the French Revolution to instill parity into French law.20 To expedite the absorption of the laws in response to demands of social equality, the laws were retroactively applied to all successions in the last five years-including settled and partitioned successions.21 Today, the U.S. Constitution protects against the retroactive alteration or creation of rights.22 Nevertheless, the rudimentary historical reasoning behind retroactivity remains current with modern policy: when legislation fixes itself to represent the "correct" law, it should apply retroactively.23

As one author elucidates, the interpretive exception satisfies an important function of the Louisiana legal system and "can potentially affect any substantive area of the law and any number of rights . . . ."24 The all-encompassing consequences of temporal effects emphasize the necessity of proper application for every area of substantive law. According to French scholarly doctrine, interpretive legislation indicates the law's original purpose with precision and applies retroactively "to resolve difficulties concerning acts and effects accomplished before their promulgation and under the dominion of the interpreted law."25

As a component of our civilian tradition, the interpretive exception should be preserved in the law with integrity, avoiding legislative exploitation.Page 604

C Existing Legal Regime: Classification Rules and Judicial Techniques

Louisiana Civil Code article 6 states: "In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary."26 Even though article 6 contains a reservation for retroactive application of substantive law upon an expression of legislative intent, such application must comply with constitutional principles.27

The general rule against retroactivity binds substantive laws, but grants an exception for interpretive legislation. Laws receiving retroactive application affect new cases and those that are not causae finitae (extinguished causes).28 Civilian scholars explain retroactive restrictions as follows: "One can justify this solution by the idea . . . that the trouble born by a retroactive law will be all the more grave as it will revive difficulties born from the opposition of interests that have been definitively settled."29 Once concluded, an issue should not be disrupted-despite subsequent changes in the law. Final judgments should be upheld in the interest of discouraging unnecessary litigation and protecting...

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