Could Louisiana's pardon board waive its capital-clemency application period using a procedure-waiver rule?

Plain-English summary

The Board of Pardons asked whether a waiver provision in its capital-case Rule 213 could waive the one-year eligibility period in separate Rule 203(E). The official opinion answers no: "Rule 213(M) does not permit the Board to waive the one-year eligibility period contained in Rule 203."

The AG drew a line between procedure and eligibility. Rule 213 sets procedures for a capital-case clemency application and hearing, and subsection (M) refers to waiving "the provisions of this policy." Rule 203 sets eligibility requirements and states the one-year period. A cross-reference from Rule 203 to Rule 213's procedures does not bring Rule 203(E)'s eligibility period within the Rule 213 waiver.

The opinion gives an additional Administrative Procedure Act reason. It says the broadly worded Rule 213(M) waiver would effectively let the board suspend rules and adopt different procedures without the public notice or legislative and gubernatorial oversight required for rule changes. The AG said a more defined waiver rule might be permissible in some circumstances, but found this one insufficiently specified. It also found no factual basis for emergency rulemaking in the situation described.

What this means for you

Pardon board officials. The opinion says Rule 213(M) cannot waive Rule 203(E)'s separate one-year eligibility period. It also questions the broad waiver provision under the state's rulemaking process.

Capital-clemency applicants and counsel. The opinion distinguishes the period in Rule 203(E) from the application and hearing procedures in Rule 213. It does not describe a granted waiver or decide an individual application.

Common questions

Does Rule 213(M)'s waiver reach Rule 203(E)'s one-year period?
No. The AG said the waiver's wording applies to provisions of Rule 213, while Rule 203(E) sets a separate eligibility period.

Did the AG approve a general power to change clemency procedures case by case?
No. It said the broad and ill-defined waiver could bypass the Administrative Procedure Act's rulemaking safeguards.

Could the board use emergency rulemaking on the facts presented?
The AG said no factual basis for it existed in the circumstances described in the opinion.

Background and statutory framework

The opinion addresses the board's own Rules 203 and 213 and the Administrative Procedure Act, including La. R.S. 49:961 and 49:962(A)(1). It treats Rule 203(E)'s one-year period as an eligibility requirement and Rule 213's subject as capital-case procedures. Its conclusion concerns the board's attempted use of Rule 213(M) to waive that separate requirement.

Citations and references

Statutes: La. R.S. 15:572.4, 49:961, and 49:962(A)(1), as cited in the opinion.

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/23-0083

Original opinion text

State of Louisiana
DEPARTMENT OF JUSTICE
CIVIL DIVISION
RD. BOX 94005
BATON ROUGE
7 0804-9005
Jeff Landry
Attorney General

July 18, 2023
OPINION 23-0083

    Francis M. Abbott                                  83        PARDON & PAROLE
    Executive Director                                 La. R.S. 15:572.4                    La. R.S. 49:961
    Louisiana Board of Pardons &                       La AS. 49:951                        La. R.S 49.962

Committee on Parole
LAO 22:V.213(M) does not permit the Board to waive the one
P.O. Box 94304
year eligibility period contained in LAO 22:V.203
Baton Rouge, LA 70804

Dear Mr. Abbott:

You requested the opinion of this office regarding the administrative rules for the Louisiana Board of Pardons and Parole (the “Board”). Specifically, you asked whether the waiver provision contained in LAG 22:V.213 (“Rule 213”) may be used to waive the provisions contained in LAG 22:V.203(E) (“Rule 203”).

Rule 203 establishes the eligibility requirements for clemency consideration. Rule 203(E) provides, ‘Any offender sentenced to death may submit an application within one year from the date of the direct appeal denial, See also §213, Capital Cases.”

Rule 213 sets forth the procedural requirements for an offender to submit an application to the Board for the Boards Consideration of a recommendation to the governor for a stay of execution of a death sentence. Rule 213 also sets forth the hearing procedures pursuant to which the Board considers the applications. Rule 213(M) purportedly permits the Board to waive any procedural requirements regarding the application or hearing procedures contained in Rule 213:

Each of the provisions of this policy are subject to waiver by the board when it finds that there exists good and adequate cause to suspend said provisions and adopt a different procedure which it finds to be better suited to the exigencies of the individual case before it,

The Rule 213(M) waiver applies to “the provisions of this policy,” i.e., the procedures for consideration of clemency applications in capital cases, as set forth in Rule 213. Rule 203 provides eligibility requirements for clemency applications and touches upon an array of application types not limited to capital cases. Although Rule 203(E) cross-references Rule 213 to direct the reader to that rule’s procedural requirements, this does not subject Rule 203(E)’s one-year eligibility requirement to waiver by virtue of Rule 213(M).
However, even assuming arguendothat the eligibility period provided in Rule 203(E) falls

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Mr. Francis M. Abbott
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within the reach of Rule 213(M)’s waiver authority, such a waiver would be contrary to law for the reasons set forth below. See La. R.S. 49:955, La. P.S. 49:961, and La. R.S. 15:572.4.

The Authority Note for Rule 213, states that the Board promulgated Rule 213 pursuant to La. R.S. 15:572.4, La. R.S. 15:574.12, and La. H.S. 44:1 etseq. None of these statutes support the waiver provision in Rule 213(M). The legislature may confer upon administrative agencies the power to “fill up the details” of a law by prescribing administrative rules and regulations. Adams v. State Dep’t of Health, 458 So.2d 1295, 1298 (La. 1984). However, administrative agencies are limited to ascertaining the facts upon which the laws are to be applied and enforced. State v. Taylor, 479 So.2d 339, 341 (La. 1985). An administrative board or agency may not exceed the statutory authority set forth by the legislature. It may be permissible for the Board to waive certain requirements set forth in rule by the Board; however, the procedures for waiving the rule must be themselves adopted and adequately set forth in rule. The broad and ill-defined waiver in Rule 213(M) ostensibly empowers the Board to repeal portions of its own rules and enact new ones at will, on an ad-hoc basis, and without any notice to the public. Such a result is impermissible under Louisiana law.

The Administrative Procedure Act (the “APA”), La. P.S. 49:950, et seq., expressly provides for public access and notice to agency decision-making in the promulgation and repeal of rules. The APA defines a ‘rule” as follows:

“Rule” means each agency statement, guide, or requirement for conduct or action, exclusive of those regulating only the internal management of the agency and those purporting to adopt, increase, or decrease any fees imposed on the affairs, actions, or persons regulated by the agency, which has general applicability and the effect of implementing or interpreting substantive law or policy, or which prescribes the procedure or practice requirements of the agency. “Rule” includes, but is not limited to, any provision for fines, prices or penalties, the attainment or loss of preferential status, and the criteria or qualifications for licensure or certification by an agency. A rule may be of general applicability even though it may not apply to the entire state, provided its form is general and it is capable of being applied to every member of an identifiable class. The term includes the amendment or repeal of an existing rule but does not include declaratory rulings or orders or any fees.

La. P.S. 49:951(8) (emphasis added).

Explicitly included in the APA definition of a rule is the repeal of an existing rule. Thus, in enacting or repealing a rule, agencies must adhere to the procedures set forth in the APA. The APA not only provides the public with notice and access to agency decision-making, the APA also provides for legislative oversight and gubernatorial veto of proposed rules prior to enactment or repeal. The waiver provision contained in Rule 213(M) circumvents the requirements of the APA. Rule 213(M) permits the Board to waive—essentially

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Mr. Francis M. Abbott
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repeal—any requirement set forth in Rule 213 and adopt new procedures or rules without public notice or legislative or gubernatorial oversight. A waiver in rule may be permissible in some circumstances, provided that the requirements and procedures for the waiver are properly set forth in the rule. The waiver in Rule 213(M) does not set forth the policies the Board must follow to waive the provisions in Rule 213, nor does the rule provide any means of notice to the public of the waivers granted by the Board.

In extraordinary circumstances, the APA permits the adoption of an emergency rule as an alternative to the ordinary rulemaking provisions contained in La. R.S. 49:961. However, an emergency rule may only be adopted for the following reasons:

(a) To prevent imminent peril to the public health, safety, or welfare.

(b) To avoid sanctions or penalties from the United States.

(c) To avoid a budget deficit in the case of the medical assistance program.

(d) To secure new or enhanced federal funding.

(e) To effectively administer provisions of law related to the imposition, collection, or administration of taxes when required due to time constraints related to congressional, legislative, or judicial action.

La. R.S. 49:962(A)(1).

In the matter at hand, however, there exists no factual basis for the Board to engage in emergency rulemaking. Even to the extent that the nature of the Board rules at issue here demonstrate that your request concerns death row inmates, the carrying out of the death penalty upon lawfully convicted and sentenced individuals does not satisfy any of the five reasons set forth by the legislature in La. R.S. 49:962(A)(1). No exigency exists where there are currently no warrants issued for execution and where it has been officially reported that the drugs needed to carry out a lethal injection are not available)

Considering the foregoing, it is the opinion of this office that Rule 213(M) does not permit the Board to waive the one-year eligibility period contained in Rule 203.

1
See Hoffman, eta!. V. Jinda!, et a!., 2022 WL 16571312 (M.D. La. 2022).

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Mr. Francis M. Abbott
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We trust this adequately responds to your request. However, if our office can be of further assistance, please do not hesitate to contact us.

With best regards,

3 EIFLAR’(
/ ATTORNEY GENERAL
/