95 0108 La.App. 1 Cir. 2/14/96, Rubicon, Inc., Matter of

• Decision Date: 14 February 1996
• Citation: 670 So.2d 475
• Parties: 95 0108 La.App. 1 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 475

670 So.2d 475

95 0108 La.App. 1 Cir. 2/14/96

In the Matter of RUBICON, INC.

No. 95 CA 0108.

Court of Appeal of Louisiana First Circuit.

Feb. 14, 1996.

Order Denying Rehearing

March 29, 1996.

Appealed from the Department of Environmental Quality, No. 009 213 191; Vivian B. Guillory, Administrative Hearing Officer.

Daria Burgess Diaz, Charles Ellis, New Orleans, for Appellant Louisiana Environmental Action Network and Ascension Parish Residents Against Toxic Pollution.

Gordon Green, Meredith Hoag Lieux, Ph.D., Baton Rouge, for Appellee Louisiana Dept. of Environmental Quality.

Steven J. Levine, Sheila T. Walet, New Orleans, for Rubicon, Inc.

Before LOTTINGER, C.J., and WATKINS, SHORTESS, CARTER, LEBLANC, FOIL, GONZALES, WHIPPLE, FOGG, PITCHER, PARRO, FITZSIMMONS and KUHN, JJ.

[95 0108 La.App. 1 Cir. 2] LOTTINGER, Chief Judge.

Appellants, Louisiana Environmental Action Network and Ascension Parish Residents Against Toxic Pollution (hereinafter collectively referred to as LEAN), appeal a decision of the Department of Environmental Quality (DEQ) granting an exemption to Rubicon, Inc. (Rubicon) from Louisiana's ban on the land disposal of hazardous waste.

FACTS AND PROCEDURAL HISTORY

Rubicon operates four injection wells at its facility in Ascension Parish, Louisiana near Geismar. These underground injection wells are used for the disposal of hazardous waste generated by Rubicon's operations.

Louisiana law prohibits the deep well injection of hazardous waste unless an exemption is granted by the DEQ. See La.R.S. 30:2193. In 1992, Rubicon submitted a petition to the DEQ requesting an exemption from the land disposal ban. On September 21, 1994, the DEQ granted an exemption in favor of Rubicon allowing the continued use of the underground injection wells. LEAN appealed this decision on October 21, 1994. Jurisdiction to review the decision was vested in this court pursuant to La.R.S. 30:2024(C). ¹

Subsequent to the filing of this appeal, Act 1208 ² of the Regular Session of 1995 was enacted by the Louisiana Legislature. The act transfers appellate jurisdiction of final DEQ [95 0108 La.App. 1 Cir. 4] decisions from the First Circuit Court of Appeal to the Nineteenth Judicial District Court and provides for the payment of witness fees to law enforcement officers subpoenaed in certain administrative proceedings.

Act 1208 was prefiled in the House as House Bill No. 2117 on March 24, 1995. On March 27 it was read by title and referred to the House Committee on Natural Resources. On April 27 it was reported with amendments. The committee amended the bill to add Section 4 providing that "[t]he provisions of this Act shall be procedural law in accordance with Civil Code Article 6." It was passed by the House on May 17. It was subsequently received by the Senate, referred to and reported favorably by committee without amendments. It passed the Senate on June 13 without any amendments and was signed by the governor on June 29.

I. JURISDICTION

Following the enactment of Act 1208, Rubicon filed a motion for determination of jurisdiction requesting that this court address the issue of whether it maintains subject matter [95 0108 La.App. 1 Cir. 5] jurisdiction over DEQ appeals. At oral argument the issue of jurisdiction was addressed by the parties prior to hearing arguments on the merits of this case. The parties also filed post-hearing memorandum on the jurisdiction issue. DEQ, Rubicon and LEAN challenge the constitutionality of the act on two grounds: (1) the act does not confine itself to a single object as required by La. Const. art. III, § 15(A); and (2) the body of the act is broader than its title in violation of La. Const. art. III, § 15(A).

A. CONSTITUTIONAL ISSUE RAISED FOR THE FIRST TIME ON APPEAL

Generally, a litigant must attack the constitutionality of a statute at the trial level before it will be considered by an appellate court. Vallo v. Gayle Oil Company, Inc., 94-1238, p. 8 (La. 11/30/94); 646 So.2d 859, 864. The unconstitutionality of the statute must be specially pleaded and the grounds for the claim particularized. Id. at 864-65. However, several exceptions to this general rule have been recognized. ³ One such exception is when the challenged statute becomes effective after an appeal is lodged in a higher court. Vallo, 646 So.2d at 864 n. 9; State v. Wright, 305 So.2d 406, 409 (La.1974) (Summers, J., dissenting); Summerell v. Phillips, 258 La. 587, 247 So.2d 542, 546 n. 5 (1971); Long v. Northeast Soil Conservation District of Louisiana, 226 La. 824, 77 So.2d 408, 410 (1954). When a statute becomes effective after the lodging of an appeal, it is impossible for the claimant to plead its unconstitutionality in the lower court. Long, 77 So.2d at 410. Under such circumstances, it would be unreasonable for an appellate court to refuse to consider a plea of unconstitutionality which was necessarily raised for the first time on appeal. Id.

We are aware that the constitutionality of Act 1208 is challenged for the first time on appeal. However, considering the aforementioned exception and the motion for determination of jurisdiction, it is proper for this court to address the constitutional issue because Act 1208 became effective after the lodging of this appeal.

For the reasons which follow, we conclude that Act 1208 is unconstitutional as it violates the one object requirement of La. Const. art. III, § 15(A).

[95 0108 La.App. 1 Cir. 6] B. THE ONE OBJECT REQUIREMENT

Article III, § 15(A) of the Louisiana Constitution provides in pertinent part that "[e]very bill ... shall be confined to one object." ⁴ The purpose behind the one object requirement is to restrict the content of a legislative bill so as to prevent a legislator from having to consider two or more unrelated matters when deciding how to vote on a single bill. Doherty v. Calcasieu Parish School Board, 93-3017 (La. 4/11/94); 634 So.2d 1172, 1175-76; Bazley v. Tortorich, 397 So.2d 475, 485 (La.1981).

A bill is considered to have one object if the parts of the bill are reasonably related and have a natural connection to the general subject matter of the legislation. Doherty, 634 So.2d at 1176; Bazley, 397 So.2d at 485. The object of a bill has been defined as the aim or purpose of the enactment; its general purpose; or the matter or thing forming the groundwork of the bill. Airey v. Tugwell, 197 La. 982, 3 So.2d 99, 102 (1941). To determine whether a bill is confined to one object, it is necessary to first examine the body of the bill to ascertain its purpose. State v. O'Dell, 253 La. 418, 218 So.2d 318, 319 (1969).

Upon examining the body of Act 1208, it is clear that it contains two distinct objects. Section one of the act provides for witness fees for law enforcement officers subpoenaed by the Department of Public Safety and Corrections or by the DEQ. The provisions of section one are related and accomplish one object, namely the providing of witness fees in connection with proceedings by various state agencies. In contrast, section two of the act is in no way related to witness fees. This section eliminates the jurisdiction of the First Circuit Court of Appeal to review final decisions of the DEQ and transfers that jurisdiction to the Nineteenth Judicial District Court. The object of this section, which is to change appellate jurisdiction of DEQ decisions, is unrelated to the object of section one.

The two objects of Act 1208 are separate and distinct, and by including them in one bill, the legislature contravened the requirements of Article III, section 15(A) of the state [95 0108 La.App. 1 Cir. 7] constitution. The act is an example of the type of bill that the constitution sought to eliminate. It forces legislators to consider unrelated objects and then to vote on all of them at one time. Because Act 1208 is not confined to one object, it violates the one object requirement of the state constitution.

Violation of the one object requirement does not necessarily invalidate an entire act. When the title of an act expresses only one object, while its body sets forth two objects, the court must restrict its declaration of nullity to the object of the act which is not expressed in the title. Orleans Parish School Board v. City of New Orleans, 410 So.2d 1038, 1040 (La.1982); State v. Ferguson, 104 La. 249, 28 So. 917, 919 (1900). However, if the title of the act expresses, and the body of the act embraces, two distinct objects, the entire act must be declared null, as the court may not choose between the two objects, holding one valid and one void. Ferguson, 28 So. at 919.

In the present case, the two objects embraced by the body of Act 1208 are also expressed in its title. The title states, in part, that the act will "provide for payment of witness fees to law enforcement officers subpoenaed in certain administrative proceedings" and "provide for appeal of final enforcement or permit action." Because the title of the act and the act itself embrace two distinct objects, we are constrained to hold the entire act invalid.

Because we declare Act 1208 unconstitutional in its entirety because of the one object violation, we pretermit any discussion of the issue that the body is broader than the title.

C. THE FIRST CIRCUIT RETAINS JURISDICTION

Having declared the act unconstitutional, we now discuss application of our decision to pending DEQ appeals.

During the Regular Session of 1995, the Legislature enacted two acts which addressed the issue of judicial review of DEQ decisions: Acts 1208 and 947. Under Act 1208, jurisdiction over DEQ appeals was to be transferred to the Nineteenth Judicial District Court on June 29, 1995, the effective date of the act. Act 947 § 1 provided that "[a]n aggrieved person may appeal devolutively a final permit action, a final enforcement action, or a declaratory ruling only to the Court of Appeal, First Circuit." The act went on to provide in Section 8 that "[i]f the provisions of [Act 1208]...