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 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 legislation 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 concerned 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 retroac...

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