State v. Byrd

• Citation: 708 So.2d 401
• Parties: 96-2302 La
• Decision Date: 13 March 1998
• Court: Supreme Court of Louisiana

Page 401

708 So.2d 401

96-2302 La. 3/13/98

STATE of Louisiana v. Timothy G. BYRD, Sr., Morris Peltier and Peter F. Nicolosi.

No. 96-KA-2302.

Supreme Court of Louisiana.

March 13, 1998.

Rehearing Denied April 24, 1998.

Richard P. Ieyoub, Attorney General, Michael Harson, District Attorney, Mary P. Jones, Kathleen E. Petersen, Baton Rouge, for Applicant.

Patrick R. Bossetta, New Orleans, Mark R. Tammariello, Patrick J. Hanna, Lafayette, for Respondent.

Ann C. Coco, John B. King, Baton Rouge, for Amicus Curiae Department of Environmental Quality.

[96-2302 La. 1] JOHNSON, Justice. ^*

In this case, we must decide whether the trial court erred in holding a state statute unconstitutional on the basis of vagueness. The defendants were indicted for violating La. R.S. 30:2183(G)(1) by knowingly storing hazardous waste at their Marco of Iota, Inc. facility located on Louisiana Highway 370 in Acadia Parish. Following a hearing on defendants' motion, the trial judge quashed the indictment, finding that the "catch-all" provision contained within the statute was so overbroad, it was rendered unconstitutionally vague. Pursuant to La. Const. art. V, § 5(D), the State filed a direct appeal to this court. Although language contained within the "catch-all" provision of La. R.S. 30:2183(G)(1) is somewhat expansive because it refers the reader to the entire Chapter on Hazardous Waste Control, we find that the trial court erred in holding the statute unconstitutional. Additionally, we find that the statute does not constitute an unauthorized delegation of legislative authority.

[96-2302 La. 2] FACTS AND PROCEDURAL HISTORY

Pursuant to an indictment issued by an Acadia Parish Grand Jury, the defendants, Peter F. Nicolsi, Morris Peltier, Jr. and Timothy G. Byrd, Sr. were charged with violating La. R.S. 30:2183(G)(1). ¹ The indictment charged that each of these defendants knowingly stored hazardous waste at their facility located in Acadia Parish, without a permit or interim status for such storage. The indictment further charged George S. Yasmine, Billy R. Crawford and Timothy J. Kern with violating La. R.S. 30:2183(G)(2) for knowingly storing hazardous waste at the same facility. ²

The defendants assert that their involvement in Marco stems from Marco's filing for bankruptcy. On October 24, 1989, Marco, a Louisiana corporation, filed for protection under Chapter 11 of the U.S. Bankruptcy Code. The defendants assert that because Marco was a hazardous waste storage facility, the bankruptcy was "heavily litigated," and the bankruptcy court was "much more strict" and required "much more detail than what ordinarily goes into a plan of reorganization." ³ John Weinstein, an attorney who testified at the motion to quash hearing, characterized Marco as "a fuel-blending partially hazardous waste storage facility." ⁴

[96-2302 La. 3] In September of 1990, defendant Peter F. Nicolosi became president of a company known as Reo International. Defendant Timothy Byrd was the secretary-treasurer, and defendant Morris Peltier was employed as a consultant. Reo was a separate corporation whose role in the bankruptcy was to recapitalize Marco so that it could satisfy its creditors. After confirmation of the reorganization plan, Marco was to reissue its stock to Reo in consideration for the recapitalization.

Each of the three defendants in May of 1996 filed a motion to quash alleging the following: 1) the indictment failed to charge an offense which is punishable under a valid statute; 2) the indictment contains an improper misjoinder of offenses ⁵; and, 3) R.S. 30:2183(G)(1) is unconstitutionally vague. Specifically, defendants argued that there was no crime for "storage" of hazardous waste within R.S. 30:2183(G)(1) and that the attempt to utilize the body of hazardous waste regulations as the basis of the charge against them failed to give adequate notice and provide adequate standards. Defendants contend that by virtue of the state's first response to their motion for a bill of particulars, (i.e., "See indictment") the state was effectively charging them with violating the entire body of hazardous waste regulations (via R.S. 30:2183(G)(1) and 30:2202(B)). ⁶ Defendants further contend that at the time of the alleged conduct, the Marco facility was in full compliance with the Louisiana Hazardous Waste Control Law (HWCL) and the hazardous waste regulations and that Reo did not own or operate the Marco facility at that time.

[96-2302 La. 4] On July, 10, 1996, the trial court conducted a hearing which encompassed defendants' motions to quash. ⁷ At the conclusion of the hearing, the lower court opined that the indictment lacked definiteness as to what activity was prohibited by the statute at the time of the alleged violations. After hearing testimony from Weinstein regarding the bankruptcy case, the trial court quashed the indictment. ⁸ In quashing the indictment, the district court found:

"there is a lack of definiteness as to what the state of the law was at the time of the alleged criminal activity. Furthermore, the Court finds that the section of the statute relied on by the State, namely the "catch-all" section prohibiting any person who otherwise knowingly violates any provision of the Chapter to be subject to criminal sanctions, to be so overbroad as to be unconstitutionally vague since it does not specifically state charges against these three defendants so as to allow them to adequately prepare for a defense."

The trial court based its ruling upon two cases dealing with constitutional vagueness, State v. Union Tank Car Co., 439 So.2d 377 (La.1983) and State v. Dousay, 378 So.2d 414 (La.1979). The trial court determined that there was no basis to quash count one of the indictment. However, the motions to quash count two filed on behalf of Nicolsi, Peltier and Byrd were granted. This opinion only involves the violations listed in count two.

The parties presented their arguments before this court on October 20, 1997, at which time the defendants alleged that the crime with which they were charged was created by a state agency and constitutes an improper delegation of [96-2302 La. 5] legislative authority. At the conclusion of oral argument, the parties were instructed to file supplemental briefs on this issue.

DISCUSSION

Delegation of Legislative Authority

Under proper circumstances, our case law allows the delegation of legislative authority to executive agencies. In Schwegmann Brothers Giant Super Mkts. v. McCrory, 237 La. 768, 112 So.2d 606 (1959), this court concluded that our Legislature may confer authority on administrative boards and commissions to determine the facts or state the things upon which the law intends to make its action depend. There, we found:

"It is now well settled that the Legislature may make the operation or the application of a statute contingent upon the existence of certain conditions, and may delegate to some executive or administrative board the power to determine the existence of such facts and to carry out the terms of the statute. So long as the regulation or action of the official or board authorized by statute does not in effect determine what the law shall be, or involve the exercise of primary and independent discretion, but only determines within the prescribed limits some fact upon which the law by its own terms operates, such regulation is administrative and not legislative in its nature."

Schwegmann, 112 So.2d at 613; State v. All Pro Paint & Body Shop, Inc. 93-1316 (La.7/5/94); 639 So.2d 707.

While an administrative agency can conduct ministerial or administrative duties, to determine whether a statute unconstitutionally delegates legislative authority to such agency, our jurisprudence employs a three-prong analysis which is referred to as the Schwegmann test. A statute that delegates legislative authority to an administrative agency is constitutional where: (1) the statute 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 safeguards to protect against abuse of discretion by the agency. All Pro Paint & Body Shop, 639 So.2d at 712; State v. Barthelemy, 545 So.2d 531, 533 (La.1989); Union Tank Car, 439 So.2d at 381.

[96-2302 La. 6] Initially, we must determine whether the statute at issue, La. R.S. 30:2183(G)(1), expresses a clear legislative policy. The purpose of the HWCL is found at La. R.S. 30:2172(B), which states:

"In order to diminish the risks to which the citizens and environment of this state are being exposed it is in the public interest, and within the police power of the state, to establish a framework for the regulation, monitoring, and control of the generators, transportation, treatment, storage, and disposal of such hazardous wastes, and it is the declared purpose of this Chapter to authorize the development, implementation, and enforcement of a comprehensive state hazardous waste control program."

Because La. R.S. 30:2183(G)(1) contains an appropriate legislative policy aimed at reducing the risks involving hazardous wastes to both the citizens of this state and the environment, the statute meets the first prong of the Schwegmann test.

Next, we must decide whether La. R.S. 30:2183(G)(1) provides guidance for administrative officials in executing the law. Our decision rendered in All Pro Paint & Body Shop, Inc. adequately addressed any concerns involving this segment of the Schwegmann test. We found that:

"the HWCL authorizes the DEQ to promulgate regulations implementing a comprehensive state hazardous waste control program that is consistent with the minimum criteria hereinafter set forth and also consistent with the mandates of the federal Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. § 6901 et seq. La. R.S. 30:2175."

All Pro Paint & Body Shop, Inc., 639 So.2d at 717. The case further states that the HWCL grants the ...