State v. MillerState v. Miller
- Reporters:
- ,
- Before:
- Knoll
KNOLL, Justice.*
This criminal case addresses the constitutionality of the last sentence of
FACTS AND PROCEDURAL HISTORY
On March 13, 2002, around 5:30 p.m., officers of the Jefferson Parish Sheriff‘s Office on duty at the Jefferson Parish Correctional Center (“JPCC“) conducted a lockdown search of POD 3B LEFT, an area within the JPCC. During the search, the officers discovered a silver colored cellular phone plugged into a charger, which had been concealed behind a television set located in the common area of the POD.
After obtaining a search warrant for the information stored in the phone and a subpoena duces tecum for the cellular phone company‘s records, the investigating officers determined that the phone contained numbers directly linked to defendant, Corey Miller. At the time the phone was discovered, Miller was housed in the POD on charges of second-degree murder. Officers also learned that the phone was registered to the same address as listed on Miller‘s Louisiana identification card. It was further discovered that Sheriff‘s Deputies Latasha Witherspoon and Emanuel
On July 11, 2002, a grand jury indicted the defendants, Miller, Witherspoon, and Stevenson on multiple counts. The first count charged Miller, Stevenson, and Witherspoon with conspiracy to introduce contraband into the JPCC on or between January 18, 2002 and April 19, 2002 in violation of
E. It shall be unlawful to possess or to introduce or attempt to introduce into or upon the premises of any municipal or parish prison or jail or to take or attempt to take or send therefrom, or to give or to attempt to give to an inmate of any municipal or parish prison or jail, any of the following articles which are hereby declared to be contraband for the purpose of this Section, to wit:
(1) Any currency or coin which is legal tender;
(2) Any stolen property;
(3) Any article of food or clothing;
(4) Any intoxicating beverage or beverages which cause or may cause any intoxicating effects;
(5) Any narcotic or hypnotic or excitive drug or any drugs of whatever kind or nature, including nasal inhalators of any variety, sleeping pills or barbiturates of any variety that create or may create a hypnotic effect if taken internally, or any other controlled dangerous substance as defined in
R.S. 40:961 , et seq.; and(6) Any firearm or any instrumentality customarily used as a dangerous weapon, including explosives or combustibles, except through regular channels as authorized by the officer in charge of any institution herein, or any plans for the making or manufacturing of such weapons or devices;
However, the definition of contraband is not restricted to those articles set forth hereinabove. (Emphasis added).
All of the defendants pleaded not guilty. Stevenson and Witherspoon filed motions to quash the indictment based on the constitutionality of the last sentence of
LAW AND ANALYSIS
Under
The constitution vests the legislative authority exclusively in the Legislature.
However, the courts have repeatedly recognized, in the interest of legislative efficiency, exceptions to the nondelegation doctrine and allow the Legislature to delegate to administrative boards and agencies of the state the power to ascertain and determine the facts upon which the laws are applied and enforced. All Pro Paint, 639 So.2d at 711; Taylor, 479 So.2d at 341; Broom, 439 So.2d at 367; Rodriguez, 379 So.2d 1085; State v. Morgan, 238 La. 829, 116 So.2d 682, 687 (1959); Schwegmann Brothers Giant Super Markets v. McCrory, Commissioner of Agriculture, 237 La. 768, 112 So.2d 606, 613 (1959); State v. Guidry, 142 La. 422, 76 So. 843 (1917); State v. Syas, 136 La. 628, 67 So. 522 (1915). Provided the Legislature statutorily establishes standards for the guidance of the executive or administrative body or officer so that the executive is not vested with arbitrary discretion, a delegation of legislative authority to the executive branch is constitutional and not in violation of the separation of powers doctrine. Rodriguez, 379 So.2d at 1085; All Pro Paint, 639 So.2d at 711; Taylor, 479 So.2d at 341; Broom, 439 So.2d at 367.
Under the separation of powers doctrine, unless the constitution expressly grants an enumerated legislative power to the executive or the Legislature has enacted a statute expressly authorizing another branch to exercise its power, the executive does not have the power to perform a legislative function. Meredith, 700 So.2d at 481; Ieyoub ex rel. State v. W.R. Grace & Co.—Conn., 97-728 (La.App. 3 Cir. 3/6/98), 708 So.2d 1227, 1230. If the constitution has assigned a particular authority to the legislature, the constitutional grant of power is exclusive. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 631-32, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (Douglas, J., concurring); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW,
In the case at hand, the State alleges that the Legislature implicitly delegated the authority to define what constitutes contraband to the governing body of the parish jail.3 The State argued in the trial court that the provision of
The sheriff is the keeper of the public jail of his parish.
This court has addressed the issue of the delegation of legislative authority in a criminal context on numerous occasions, and in the cases in which this issue has arisen, the statute in question contained an enabling cause directed to the executive branch granting to that branch the authority to perform some legislative function. See Morgan, 116 So.2d at 687-88 (addressing the constitutionality of former
In City of New Orleans v. Stein, 137 La. 652, 69 So. 43 (1915), this court held that the power to enforce an ordinance by a municipality, agency, or board by imprisonment must be expressly given, or else it does not exist. Stein, 69 So. at 43. Also, not only must the authority be expressly given, but it must be given plainly.4Stein, 69 So. at 43. Analogously, the authority to define items that constitute contraband, the possession of which is a crime punishable by up to five years in prison under
Given this absence of an enabling clause or any express grant of authority and the well-established tenet of statutory construction that criminal statutes are subject to strict construction under the rule of lenity, State v. Carr, 99-2209 (La.5/26/00), 761 So.2d 1271, 1274, we find that the
We further observe that had we determined the provision in question contains a proper delegation of authority to the executive, we would still find the provision unconstitutional under the separation of powers doctrine as an improper delegation of legislative authority.
This court in determining whether a particular delegation of legislative power is constitutional relies upon the three-prong test fashioned by this court under the guidance of the principles set forth in Schwegmann and inherent in the constitutional separation of powers: a delegation of authority to an administrative agency is constitutionally valid if the enabling statute (1) contains a clear expression of legislative policy, (2) prescribes sufficient standards to guide the agency in the execution of that policy, and (3) is accompanied by adequate procedural safeguards to protect against abuse of discretion by the agency. All Pro Paint, 639 So.2d at 712; State v. Barthelemy, 545 So.2d 531, 534 (La.1989); Adams v. State, Dept. of Health and Human Res., 458 So.2d 1295, 1298 (La.1984); State v. Union Tank Car Co., 439 So.2d 377, 380 (La.1983).
In State v. Taylor, 479 So.2d 339, 342 (La.1985), defendant challenged the constitutionality of former
Similar to the first sentence of former
Invalidation of the last sentence of
DECREE
For the foregoing reasons, the last sentence of
REVERSED.
KIMBALL, LOBRANO and VICTORY, JJ., concur in the result.
Notes
The explanation of this revision stated:
This is simply what we all know and understand to be the doctrine of separation of powers. The only difference between this statement and the statement of the 1921 Constitution is simply that it says “except in instances hereinafter expressly directed or permitted.” At the end of our proposal we have “except as otherwise provided in this constitution.” You may say, “Well, when in this constitution do we have other branches of government participating or encroaching upon others?” One example might be impeachment, another example may be where administrative bodies act as a court before those issues are submitted to a court, etc.
Records, supra at 3072.
The State in its Brief relies on language contained in a footnote of a case decided by the First Circuit Court of Appeal, which provides:
Defendant does not argue that the statute is unconstitutional because it specifically provides that the list of contraband articles is not exclusive and thus, implicitly delegates authority to declare an item contraband. However, such a provision does not render the statute invalid. It is apparent that this provision is simply a recognition of the fact that the officer in charge of a penal institution is likely to face situations wherein it is impracticable to lay down a comprehensive rule, and the enforcement of a police regulation may require the prompt exercise of judgment.
State v. Converse, 529 So.2d 459, 462 (La.App. 1st Cir.1988)(affirming trial court‘s denial of defendant‘s motion to quash, finding that the provision under which the defendant was charged was upheld as constitutional under State v. Morgan), writ denied, 533 So.2d 355 (La.1988).
La. R.S. 14:402(A), at the time, provided:
For the purpose of inmate and institutional security at state adult or juvenile correctional institutions, contraband shall be defined as any article, substance, or thing which is not issued by the authorities operating the facility, sold through the institutional canteen, specifically permitted by applicable regulations, or otherwise specially authorized by the head of the facility or his designee. Contraband includes but is not limited to any substance or device defined in the Uniform Controlled Dangerous Substance Law except where prescribed by a physician, provided the drugs are contained in a container from the drug store bearing the full identification of the doctor who issued the drugs, the druggist who dispensed same and the number of the prescription, and that said drugs are not concealed upon the body of the person; any weapons or devices designed to kill or wound or any plans for the making or manufacturing of such weapons or devices; explosives or combustibles; any plans for escape from an institution; intoxicating beverages; stolen property, and money which is legal tender, except where specifically authorized by applicable regulations.