Generally, citizens are not held to criminal standards that do not yet exist. When a citizen takes action, he or she is held to the criminal standards in place at the time of the act. To retroactively apply criminal laws is impermissible because that application tends to violate principles of fairness and due process.
In one case out of East Baton Rouge, Louisiana, the issue was whether the Sledge Jeansonne Louisiana Insurance Fraud Prevention Act (“Sledge Act”) and the Louisiana Unfair Trade Practice and Consumer Protection Act (“LUTPA”) could be applied retroactively to a defendant’s misconduct occurring before the statutes were effective.
The State of Louisiana argues that the principles of fairness and due process would not be violated here because Sledge does not target the underlying conduct but instead is triggered by the entering of a guilty plea. Further, the State argues that civil penalties sought under LUTPA were similarly permissible.
The State sought to punish Dr. Lynn Foret, an orthopedic surgeon, who plead guilty to one count of healthcare fraud on April 18, 2013. Dr. Foret’s criminal actions took place between 2003 and 2009 and included a scheme defrauding Medicare, Medicaid, and other insurance companies by routinely treating patients with lower cost items while charging the price of the higher cost alternatives. In August of 2012, the Sledge Act took effect and authorized the Attorney General of Louisiana to bring civil actions against any such person who had entered a guilty plea arising out of insurance fraud. By the power expressly granted in the Sledge Act, the Attorney General of Louisiana filed a civil suit against Dr. Foret. Similarly, further monetary penalties were sought through LUTPA via an amendment which authorized the Attorney General of Louisiana to seek such penalties in the event unfair competition or deceptive practices were used in commerce. That amendment went into effect June of 2006. In response to the sought penalties, Dr. Foret alleged that (1) Sledge Act was impermissibly applied as it related to misconduct committed prior to its effective date, (2) LUTPA was impermissibly applied to any alleged violation before the effective date of the applicable amendment and (3) improper venue. The claim for improper venue was dismissed. A hearing was held on October 21, 2013, and the trial court granted Dr. Foret’s exceptions, dismissing the State’s action for penalties under both Sledge Act and LUTPA with prejudice. The court of appeal affirmed those rulings because it found that the statute regulated prior conduct and not just the guilty plea made on April 18, 2013. The State then applied to the Louisiana Supreme Court for review.
When evaluating a retroactive application, a court must determine (1) whether the application of the law as expressed is retroactive or prospective, and (2) discern intent of the application of the law if that intent is not expressed. La. C.C. art. 6. In the case presented here, neither of the laws, Sledge Act nor LUTPA, clearly expressed intent in regard to the application. Therefore, intent must be discerned in both cases. The Court has adopted a formula to aid in that task: application of a new law is improper if it (1) goes back to the past either to evaluate the conditions of the legality of an act; or (2) modifies or suppresses the effects of a right already acquired. However, the analysis is made on a case-by-case basis.
In this case, the Court was entrusted to answer one key question; whether the State was seeking to penalize Dr. Foret’s prior criminal conduct or whether they were seeking to penalize Dr. Foret for the guilty plea.
Sledge Act granted the Attorney General of Louisiana the statutory authority to bring a civil action for means of collecting damages and penalties against individuals who commit insurance fraud, and yet, there was no expressed application. Using the above formula as a guide, the Court found that the cause of action granted via Sledge Act is seeking to redress prior fraudulent conduct. Therefore, the conduct regulated is the criminal conduct, or in this case, the activity which led to Dr. Foret’s guilty plea rather than the guilty plea itself. To allow the State to seek penalties on conduct which occurred before the effective date of the Act would violate the formula, and would, therefore, be considered improper. Similarly, the Court views the penalties sought under LUTPA for Dr. Foret’s same criminal acts would also be improper as to events taking place prior to the effective date of its amendment.
In conclusion, it is generally impermissible to penalize criminal conduct which occurred prior to the effective date of any particular legislation. To do so would violate the defendant’s due process rights. Here, the Louisiana Supreme Court held that the State’s attempt to seek penalties via Sledge Act and LUTPA were both impermissible as it related to Dr. Foret’s criminal, fraudulent conduct which occurred prior to the effective date of each law.
Additional Sources: Louisiana v. Foret
Written by Berniard Law Firm Blog Writer: Sean E. Acosta
Additional blog posting by Berniard Law Firm on Retroactive Statutes