J. Robert Wooley
v.
State Farm, et al.
No. 502-311

District Court Opinion in the Wooley v. State Farm Case

J. ROBERT WOOLEY, ETC. NO. 502-311 DIVISION D

V. 19TH JUDICIAL DISTRICT COURT

STATE FARM FIRE & CASUALTY PARISH OF EAST BATON ROUGE

INSURANCE CO., ET AL. STATE OF LOUISIANA

ORAL REASONS FOR JUDGMENT

THURSDAY, NOVEMBER 13, 2003

HONORABLE JANICE G. CLARK, JUDGE PRESIDING

THE COURT: THIS IS J. ROBERT WOOLEY, IN HIS

CAPACITY AS ACTING COMMISSIONER OF INSURANCE STATE

OF LOUISIANA V. STATE FARM FIRE & CASUALTY

INSURANCE COMPANY, ET AL., SUIT NO. 502-311.

REASONS FOR JUDGMENTS.

THIS IS AN ACTION FOR DECLARATORY JUDGMENT

AND INJUNCTIVE RELIEF SEEKING TO DECLARE

UNCONSTIUTIONAL ACT 739, ADOPTED IN THE 1995

REGULAR SESSION OF THE LOUISIANA LEGISLATURE,

ENACTED AS CHAPTER 13-B OF TITLE 49, SECTIONS 99

THROUGH 999, CREATING THE DIVISION OF

ADMINISTRATIVE LAW WITHIN THE EXECUTIVE BRANCH

UNDER THE AUSPICES OF THE STATE CIVIL SERVICE

DEPARTMENT, AND ACT 1332 OF 1999, LOUISIANA

LEGISLATIVE REGULAR SESSION, DENYING THE RIGHT OF

APPEAL BY JUDICIAL REVIEW TO THE DULY ELECTED

COMMISSIONER OF INSURANCE, INTER ALIA.

THE ATTORNEY GENERAL REPRESENTING THE

GOVERNOR OF THE STATE OF LOUISIANA AND THE GENERAL

COUNSEL REPRESENTING THE STATE DEPARTMENT OF CIVIL

SERVICE NOTIFIED THE COURT THAT THEY WOULD MOUNT

NO PARTICULAR DEFENSE OF THE SUBJECT STATUTE.

HOWEVER, AN "ADMINISTRATIVE LAW JUDGE", VIVIAN

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GUILLORY, ENROLLED AS COUNSEL OF RECORD ON BEHALF

OF THE DIVISION OF ADMINISTRATIVE LAW AND ITS

DIRECTOR ANN WISE, AND VIGOROUSLY MOUNTED AN

OPPOSITION TO THE ACTION AT BAR.

BECAUSE OF THE MAGNITUDE OF THE QUESTIONS

PRESENTED, THE COURT ALLOWED AMICUS CURIAE BRIEFS

TO BE FILED AND WAS PROVIDED DETACHED ANALYSIS BY

PROFESSOR PAUL BAIER, LSU CONSTITUTIONAL LAW;

PROFESSOR DOROTHY JACKSON, SOUTHERN UNIVERSITY

SCHOOL OF LAW, CLINICAL DIRECTOR AND FORMER

ASSISTANT ATTORNEY GENERAL; MR. ALFRED "BUTCH"

SPEER AND MARY F. QUAID OF THE CLERK OF THE

LOUISIANA HOUSE OF REPRESENTATIVES; SUCHITRA

SATPATHI ATTORNEY ON BEHALF OF THE LOUISIANA

LEGISLATIVE BLACK CAUCUS.

PURSUANT TO THE STIPULATION OF THE PARTIES,

THE COURT DECLINED TO ISSUE THE TEMPORARY

RESTRAINING ORDER. THE COURT, HAVING CONDUCTED A

FULL-BLOWN HEARING ON THE APPLICATION FOR

PRELIMINARY INJUNCTION BY SUMMARY PROCEEDING AND A

LENGTHY TRIAL ON THE MERITS OF THE DECLARATORY

ACTION VIA ORDINARIA AND THEREAFTER ALLOWING ALL

COUNSEL TO SUBMIT POST-TRIAL BRIEFS, FOUND BOTH

STATUTES CONSTITUTIONALLY INFIRM, AND MAKES THE

FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF LAW

PURSUANT TO TIMELY FILED APPLICATION AND MOTION BY

COUNSEL FOR THE PLAINTIFF AND OTHER PARTIES.

IN FEBRUARY OF 1996 STATE FARM FIRE &

CASUALTY INSURANCE COMPANY FILED A RENTAL

CONDOMINIUM UNIT OWNERS' POLICY FORM WITH THE

COMMISSIONER OF INSURANCE FOR HIS REVIEW AND

APPROVAL WHICH IS REQUIRED BY LAW, SPECIFICALLY

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R.S. 22:620. THE EMPLOYEES OF THE DEFENDANT

LOUISIANA DEPARTMENT OF INSURANCE'S PROPERTY AND

CASUALTY FORMS REVIEW SECTION REVIEWED ACTING AS

THE AGENCY, AS AUTHORIZED BY R.S. 36:681(B).

SUBSEQUENTLY, AND BY LETTER DATED APRIL 19 OF

1996, STATE FARM WAS ADVISED THAT THE FILING HAD

BEEN DISAPPROVED FOR USE IN LOUISIANA, IN THAT IN

THE AGENCY'S VIEW, DISAPPROVAL WAS REQUIRED IF IT

WAS IN ANY RESPECT IN VIOLATION OR DID NOT COMPLY

WITH LAW. THE ERRANT PROVISION THEREIN, IN

ACCORDANCE WITH THE OPINION OF THE AGENCY, WAS THE

REPRESENTATIONS AND WARRANTIES PROVISION IN THE

POLICY, IN THAT IT DID NOT COMPLY WITH APPLICABLE

SECTIONS OF THE INSURANCE CODE GOVERNING SUCH

PROVISIONS AS INTERPRETED AND APPLIED BY THE

COMMISSIONER IN CARRYING OUT HIS DUTIES PURSUANT

TO SECTION 621.

THEREAFTER, DEFENDANT STATE FARM REQUESTED

THE DEFENDANT TO RECONSIDER ITS OPINIONS WITH

RESPECT TO THE SECTIONS GOVERNING THE

REPRESENTATIONS AND WARRANTIES PROVISION. HAVING

HAD SEVERAL INFORMAL MEETINGS OVER A LENGTHY

PERIOD OF TIME, IN JANUARY OF 1998, STATE FARM WAS

INFORMED BY LETTER THAT THE FORM WAS ONCE AGAIN

DISAPPROVED FOR USE IN LOUISIANA.

THEREAFTER, STATE FARM REQUESTED A HEARING ON

THE GROUNDS THAT IT WAS AGGRIEVED BY THE

DISAPPROVAL OF ITS FORM FILING, ALTHOUGH OTHER

FOREIGN INSURERS OPERATING IN THE STATE OF

LOUISIANA HAD INDEED ACCEPTED THE INTERPRETATION

OF THE AGENCY.

IN ACCORDANCE WITH STATE FARM'S REQUEST, A

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ADJUDICATORY HEARING WAS HELD BEFORE AN

ADMINISTRATIVE LAW JUDGE EMPLOYED BY THE DIVISION

OF ADMINISTRATIVE LAW, DEPARTMENT OF CIVIL

SERVICE, AFTER WHICH SAID ADMINISTRATIVE LAW JUDGE

ISSUED AN ORDER FINDING THE AGENCY HAD ERRED AS A

MATTER OF LAW IN DISAPPROVING STATE FARM'S RCU

POLICY, AND FURTHER ORDERED THE AGENCY TO APPROVE

THE FORM. NONETHELESS, THE COMMISSIONER OF

INSURANCE FILED AN APPLICATION FOR A REVIEW OF THE

ORDER OF THE ADMINISTRATIVE LAW JUDGE.

ON JUNE 22, 2001 THE COURT OF APPEAL, FIRST

CIRCUIT ISSUED A RULING FINDING THAT PURSUANT TO

ACTS 1999, NO. 1332, AMENDING AND REENACTING LSA

R.S. 49:964 AND 49:992, THE COMMISSIONER OF

INSURANCE WAS AN AGENCY PARTY TO THE PROCEEDING

BEFORE THE D.A.L. AND THEREFORE DID NOT HAVE A

RIGHT TO SEEK JUDICIAL REVIEW OF AN ADVERSE

RULING, EVEN THOUGH THOSE MATTERS INVOLVED ONLY

QUESTIONS OF LAW, AND THAT THE COMMISSIONER OF

INSURANCE HAD AN ADEQUATE REMEDY AT LAW IN THAT HE

COULD FILE A DECLARATORY JUDGMENT CHALLENGING THE

STATUTORY SCHEME CREATING THE DIVISION OF

ADMINISTRATIVE LAW AND REQUEST AN ORDER ENJOINING

THE ORDER OF THE ADMINISTRATIVE LAW JUDGE TO

APPROVE THE STATE FARM RCU POLICY.

IN ITS RULING, THE COURT OF APPEAL, FIRST

CIRCUIT NOTED THAT IT WAS WITHIN THE LEGISLATIVE

SCHEME TO ALLOW A JURISTIC PERSON SUCH AS STATE

FARM THE RIGHT OF APPEAL BUT TO DENY THE AGENCY

REPRESENTED BY A DULY ELECTED OFFICER THE RIGHT OF

APPEAL, DIRECTING ITS INTENT TO PUT FINALITY TO

THE PROCEEDING.

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THE EVIDENCE DISCLOSES AND THE COURT FINDS

THAT ACT 739 WAS ADOPTED IN THE 1995 REGULAR

SESSION OF THE LOUISIANA LEGISLATURE. THE ACT

ALLOWED THE GOVERNOR OF THE STATE OF LOUISIANA TO

APPOINT A DIRECTOR, DEFENDANT HEREIN ANN WISE, AND

AUTHORIZED HER TO EMPLOY ADMINISTRATIVE LAW

JUDGES. THERE WAS NO REQUIREMENT THAT THE

ADMINISTRATIVE LAW JUDGES HAVE EXPERTISE OR

EXPERIENCE WITH RESPECT TO ANY AREA OF REGULATION.

THE COURT FURTHER FINDS THAT THE

ADMINISTRATIVE LAW JUDGES, OF WHICH THERE ARE

THIRTEEN, WERE NOT PRIOR TO THEIR APPOINTMENT

REQUIRED TO BE ACTIVE OR RETIRED JUDGES NOR ACTIVE

OR RETIRED ATTORNEYS BUT WERE SUBJECT TO ALL OF

THE RIGHTS AND BENEFITS AND EMOLUMENTS OF

EMPLOYEESHIP UNDER THE CIVIL SERVICE RULE AFTER A

TWO-YEAR PROBATIONARY PERIOD.

THE COURT FURTHER FINDS THAT OF THE THIRTEEN

ADMINISTRATIVE LAW JUDGES DULY APPOINTED, THAT

NINE WERE, IN FACT, OR HAD BEEN ATTORNEYS. FOUR,

HOWEVER, HAD BEEN EMPLOYED BY THE DEPARTMENT OF

PUBLIC SAFETY AND CORRECTIONS AS LAW ENFORCEMENT

OFFICERS, NOT HAVING LAW DEGREES OR OTHER

QUALIFICATIONS WITH RESPECT TO DISPUTE RESOLUTION,

ARBITRATION, MEDIATION OR COUNSELING. THEY WERE,

NONETHELESS, "GRANDFATHERED" IN BY THE EXECUTIVE.

ALSO WITH RESPECT TO SECTION 992 OF THE ACT,

WITH THE EXCEPTION OF CERTAIN EXPRESSLY NAMED

AGENCIES, ALL ADJUDICATORY FUNCTIONS OF THE

VARIOUS SATE AGENCIES WERE TRANSFERRED TO THE

DIVISION OF ADMINISTRATIVE LAW EFFECTIVE ON

OCTOBER 1, OF 1996, DIVESTING EACH SUCH AGENCY OF

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ITS AUTHORITY TO ISSUE FINAL DECISIONS OR ORDERS

AND SUPPLANTING THEIR AUTHORITY TO OVERRIDE THE

DECISION OF AN ADMINISTRATIVE LAW JUDGE EMPLOYED

BY THE DIVISION OF ADMINISTRATIVE LAW.

THE LOUISIANA LEGISLATURE ENACTED ACT 1332 IN

1999 TO BAR AN AGENCY PARTY TO A PROCEEDING HELD

BEFORE THE DIVISION OF ADMINISTRATIVE LAW FROM

SEEKING JUDICIAL REVIEW OF AN ADVERSE RULING,

INCLUDING CASES WHICH ONLY INVOLVE QUESTIONS OF

LAW.

AS PART OF THE EXECUTIVE BRANCH, AN

ADMINISTRATIVE AGENCY IS RESPONSIBLE FOR

IMPLEMENTING AND ENFORCING SPECIFIC AREAS OF LAW

WITHIN ITS EXPERTISE, AS WELL AS FINAL

ADJUDICATORY DECISIONS OR ORDERS INVOLVING

ELEMENTS OF POLICY MAKING AND EXERCISING THE

DISCRETION COMMITTED TO THE ADMINISTRATIVE AGENCY

IN PURSUING THE GOALS FOR WHICH IT IS RESPONSIBLE.

CONSEQUENTLY, IT IS SOMETIMES NECESSARY FOR

THE EXERCISE OF A QUASI-JUDICIAL POWER WITHIN THE

EXECUTIVE BRANCH TO BE BASED UPON A NEED FOR AN

AGENCY'S SPECIALIZED KNOWLEDGE AND EXPERTISE IN

THE AREA, SUBJECT TO ITS REGULATORY JURISDICTION.

THE AGENCY HAS THE FULL AUTHORITY TO DELEGATE THE

CONDUCTING OF ADJUDICATORY HEARINGS TO A

SUBORDINATE OFFICER BECAUSE THE AGENCY HEAD IS

RESPONSIBLE FOR MAKING THE ULTIMATE DECISION.

BY ENACTING ACT 739 OF 1995, THE LEGISLATURE

CREATED AN INSULAR BODY OF NON-ELECTED JUDGES

WITHIN THE CIVIL SERVICE DEPARTMENT IN THE

EXECUTIVE BRANCH WITH THE AUTHORITY TO RENDER

FINAL ADJUDICATORY DECISIONS OR ORDERS WITH

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RESPECT TO REGULATORY LAW WHERE THEY HAD NO

SPECIALIZED KNOWLEDGE, EXPERTISE OR EXPERIENCE,

NOR WERE THEY ACCOUNTABLE TO THE ELECTORATE FOR

THE DECISIONS THEY MADE IN CASES BEFORE THEM, ALL

WITHOUT JUDICIAL REVIEW IN THE INSTANCES WHERE THE

DECISIONS WERE ADVERSE TO THE AGENCY.

THE COURT FINDS, HAVING CONDUCTED A HEARING,

A TRIAL, AND HAVING, AT THE REQUEST OF THE

DIVISION OF ADMINISTRATIVE LAW, VISITED THE

AGENCY, THAT THE DIVISION OF ADMINISTRATIVE LAW

JUDGES HOLD THEMSELVES OUT AS JUDGES. THERE IS A

JUDGE'S ENTRANCE. SOME OF THEM APPEAR IN THE

BATON ROUGE BAR ASSOCIATION BOOKLET IN ROBES.

THEY ADDRESS EACH OTHER AS JUDGES, AND THEY

EXERCISE POWER THAT IS RESERVED TO THE JUDICIARY

WITHOUT BEING SUBJECT TO THE SUPREME COURT IN ITS

JUDICIAL FUNCTIONS, AND WITHOUT BEING SUBJECT TO

THE JUDICIAL COUNSEL FOR ITS QUASI-JUDICIAL

FUNCTIONS.

THEY ARE NOT ACCOUNTABLE TO THE PUBLIC

BECAUSE THEY HAVE NOT BEEN ELECTED, BUT ARE UNDER

THE TUTELAGE AND DIRECT SUPERVISION OF THE

GOVERNOR AND HIS OTHER SUBORDINATES.

THIS COURT FURTHER FINDS THAT THE OFFICE OF

THE COMMISSIONER OF INSURANCE IS, INDEED, A

CONSTITUTIONALLY CREATED OFFICE VESTED WITH THE

POWER AND OBLIGATION TO REGULATE THE BUSINESS OF

INSURANCE, WHICH HAS BEEN DEFINED AS EFFECTED WITH

THE PUBLIC INTEREST. HE IS REQUIRED AND TAKES ALL

NECESSARY STEPS TO PROTECT THE PUBLIC INTEREST.

THE COURT FURTHER FINDS THAT PURSUANT TO THE

DECISION OF AN ADMINISTRATIVE LAW JUDGE, THE

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COMMISSIONER WAS ORDERED TO APPROVE A POLICY THAT

CONTAINED, IN HIS VIEW, PROVISIONS IN VIOLATION OF

THE LAW CONTRARY TO HIS SWORN DUTY TO UPHOLD AND

ADMINISTER THE PROVISIONS OF THE CODE TO PROTECT

THE PUBLIC INTEREST.

THE COURT MAKES THE FOLLOWING CONCLUSIONS OF

LAW. THAT ACT 739, 1995 VIOLATES THE SEPARATION

OF POWERS ARTICLE II, SECTION 1 AND SECTION 2

WHICH EXPRESSLY PROVIDES THAT THE POWERS OF

GOVERNMENT ARE DIVIDED AMONG THREE BRANCHES, THE

EXECUTIVE, THE LEGISLATIVE, AND THE JUDICIAL

BRANCH, AND THAT NO ONE BRANCH NOR ANY PERSON

HOLDING OFFICE IN THEM SHALL EXERCISE ANY OF THE

POWER BELONGING TO THE OTHER BRANCHES BY VESTING

JUDICIAL POWER IN THE EXECUTIVE BRANCH EMPLOYEES.

IT VIOLATES FURTHER ARTICLE V, SECTION 22

WHICH MANDATES AN ELECTIVE JUDICIARY BY PROVIDING

FOR THE HIRING AND INSTALLING OF NON-ELECTED

JUDGES IN THE EXECUTIVE BRANCH, SUBJECT TO THE

AUTHORITY, CONTROL, AND SUPERVISION OF THE

GOVERNOR AND HIS SUBORDINATES.

THE COURT FURTHER FINDS THAT THE ACT DIVESTS

THE DISTRICT COURTS OF ORIGINAL JURISDICTION,

VIOLATING ARTICLE V, SECTION 16 BY CREATING AN

INSULAR AND INDEPENDENT JUDICIARY WITHIN THE

EXECUTIVE BRANCH WITHOUT ANY LIMITATION ON MATTERS

WHICH MAY BE HEARD BY CIVIL SERVICE EMPLOYEES

HOLDING THEMSELVES AS JUDGES BUT SUBJECT ONLY TO

THE AUTHORITIES OF THE GOVERNOR IN THE EXECUTIVE

BRANCH AGENCY.

PARTICULARLY EGREGIOUS, THE ACT DIVESTS THE

JUDICIAL BRANCH OF ITS INHERENT POWER TO DECIDE

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MATTERS INVOLVING QUESTIONS OF LAW.

THE ACT VIOLATES ARTICLE V, SECTION 1 WHICH

PROVIDES THAT THE JUDICIAL POWER OF THE STATE IS

TO BE VESTED IN THE SUPREME COURT, COURTS OF

APPEAL, DISTRICT COURTS, AND OTHER COURTS AS MAY

BE AUTHORIZED BY THE CONSTITUTION BY THE TRANSFER

AND INSTALLATION OF JUDICIAL POWER IN THE

EXECUTIVE BRANCH, AND VIOLATES ARTICLE V, SECTION

1 BY THE CREATION OF A COURT WHICH IS NOT

AUTHORIZED BY THE CONSTITUTION, AND THEREFORE ITS

CREATION IS BEYOND THE SCOPE OF POWERS VESTED IN

THE LEGISLATURE.

IT CONFERS POWER VESTED IN AN ELECTED

OFFICIAL AND HOLDER OF A CONSTITUTIONALLY CREATED

OFFICE TO A NON-ELECTED ADMINISTRATIVE LAW JUDGE

WHICH DIVESTITURE VIOLATES ARTICLE IV, SECTION

1(B) OF THE LOUISIANA CONSTITUTION WHICH PROVIDES

THAT THE FUNCTIONS POWERS, DUTIES, AND

RESPONSIBILITIES ALLOCATED BY THE CONSTITUTION TO

THE COMMISSIONER OF INSURANCE SHALL NOT BE

AFFECTED OR DIMINISHED, EXCEPT AS REGARDS ARTICLE

IV, SECTION 20, WHICH SECTION DOES NOT PROVIDE FOR

THE TRANSFER OF ANY OF THE POWERS OF THE

COMMISSIONER OF INSURANCE TO A DIVISION OF THE

DEPARTMENT OF CIVIL SERVICE.

SUCH POWER BY THE LEGISLATURE CAN ONLY BE

EXERCISED WITHIN THE PARAMETERS OF THE

CONSTITUTION. THE LEGISLATURE HAS USURPED POWERS

BELONGING TO THE JUDICIAL BRANCH AND TRANSFERRED

THEM TO THE EXECUTIVE BRANCH, AND THE EXECUTIVE

BRANCH IS EXERCISING POWER WHICH HAS BEEN RESERVED

BY THE CONSTITUTION TO THE JUDICIAL BRANCH.

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THE CO-EQUAL BRANCHES AND BALANCE OF POWER

HAS BEEN AFFECTED. THE COURT FINDS ACT 1332 OF

1999 IS UNCONSTITUTIONAL AND VIOLATES THE

FOLLOWING PROVISIONS. ARTICLE II, SECTION 1 AND

SECTION 2, WHICH EXPRESSLY PROVIDE THAT THE POWERS

OF THE GOVERNMENT ARE DIVIDED INTO THREE BRANCHES.

IT VIOLATES ARTICLE II, SECTION 1 BECAUSE IT

OBLITERATES A CHECK ON THE POWER THAT IS EXERCISED

BY THE EXECUTIVE COURT BY MAKING ITS RULINGS

NON-REVIEWABLE BY THE JUDICIAL BRANCH IN THOSE

INSTANCES INVOLVING A RULING ADVERSE TO THE AGENCY

POWER.

IT VIOLATES ARTICLE II, SECTION 1 AND SECTION

2 IN THAT IT DIMINISHES THE POWER OF THE JUDICIAL

BRANCH TO DECIDE MATTERS INVOLVING QUESTIONS OF

LAW, AND STRIPS THE JUDICIAL BRANCH OF ITS

INHERENT POWER TO ISSUES OF WRITS OF CERTIORARI

AND REVIEW IN THOSE INSTANCES WHERE THE PERSON

SEEKING THE REVIEW IS THE AGENCY PARTY.

IT VIOLATIVE OF ARTICLE I, SECTION 2 AND

ARTICLE I, SECTION 3 AND ARTICLE I, SECTION 22 IN

THAT IT DENIES THE CITIZENS AND THE INSURANCE

CONSUMERS OF LOUISIANA, THROUGH THE PARTY DULY

ELECTED, TO REPRESENT AND PROTECT THEIR INTEREST

AND TO TAKE ALL STEPS NECESSARY TO ACCESS THE

COURTS, A RIGHT WHICH HAS NOT BEEN DENIED TO

FOREIGN INSURERS.

THE COURT, AS IT MUST, HAS ACCORDED THE

PRESUMPTION OF CONSTITUTIONALITY TO THE SUBJECT

ENACTMENTS OF THE LEGISLATURE, BUT NONETHELESS

FINDS THEM INFIRM FOR THE REASONS HEREINABOVE

ENUMERATED.

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ADDITIONALLY, THIS COURT FINDS THAT THE

PETITIONERS ARE ENTITLED TO PERMANENT INJUNCTION

AND WILL SIGN JUDGMENT ACCORDINGLY. NOTIFY

COUNSEL.

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