Westlawn Cemeteries, L.L.C. v. The Louisiana Cemetery Board

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #013
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 25th day of March, 2022 are as follows:
BY McCallum, J.:
2021-CA-01414 WESTLAWN CEMETERIES, L.L.C. VS. THE LOUISIANA CEMETERY
BOARD (Parish of Jefferson)
AFFIRMED. SEE OPINION.

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SUPREME COURT OF LOUISIANA
No. 2021-CA-01414
WESTLAWN CEMETERIES, L.L.C.
VS.
THE LOUISIANA CEMETERY BOARD
On Appeal from the 24th Judicial District Court, Parish of Jefferson
McCallum, J.
The Louisiana Cemetery Board (“LCB”) challenges the district court’s
judgment finding Louisiana A dministrative Code 46:XIII.1503 C (hereinafter
sometimes referred to as the “Rule”) to be unconstitutional. The LCB filed a direct
appeal with this Court purportedly under La. Const. art. V, § 5 (D)(1), which
provides this Court with appellate jurisdiction in a case in which “a law or ordinance
has been declared unconstitutional.” Whether this Court has appellate jurisdiction
was raised as an issue in an Answer to Appeal filed by appellees, Westlawn
Cemeteries, L.L.C. (“Westlawn”) and the Trustees of the Westlawn Memorial Park
Perpetual Care Trust Fund (“Trustees”).1 Therefore, we address this issue first.
Our jurisprudence is clear as to the scope of this Court’s appellate jurisdiction
under La. Const. art. V, § 5 (D)(1). “[R]ules and regulations promulgated by an
administrative agency or department are not . . . law[s] or ordinance[s]’ under La.
Const. art. V, sec. 5(D); thus, a trial court’s declaration of their unconstitutionality
is not directly appealable to the Louisiana Supreme Court.” Coastal Drilling Co. v.
Dufrene, 2015-1793, p. 3 n.2 (La. 3/15/16), 198 So. 3d 108, 112; See also, Holthus
1 The Trustees are Boyd L. Mothe, Boyd L. Mothe, Jr., Laurie M. Knowles, Nicole M. Lawson,
Katherine M. Illg, and Boyd L. Mothe, III. The Trustees appear in this matter as intervenors. For
purposes of this appeal, Westlawn and the Trustees are collectively referred to as “Westlawn.”
03/25/22

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v. Louisiana State Racing Comm’n, 569 So. 2d 547, 547 (La. 1990); Benelli v. City
of New Orleans, 474 So. 2d 1293, 1294 (La. 1985); Vicksburg Healthcare, LLC v.
State ex rel. Dep’t of Health & Hosps., 2010-1248, p. 3 n.2 (La. App. 1 Cir. 3/25/11),
63 So. 3d 205, 206.
We recognized in Benelli that the appellate jurisdiction of th e Court “is
narrowly limited by the constitution.” This limitation is not arbitrary. It serves the
purpose of restricting appeals of right to those instances where “the legislative act of
a governing authority, a body which exercises the legislative functions of a political
subdivision, has been declared unconstitutional .” Id. at p. 1294. This, we found,
was consistent with the intent of the legislature as reflected in the convention debates
leading to the enactment of La. Const. art. V § 5 (D). Id.
The provision at issue was not enacted by the Louisiana legislature; rather, it
is a rule promulgated by the LCB, an administrative agency. The LCB is not a
“governing body” and does not exercise “legislative functions .” Its rules and
regulations, therefore, are not “laws” for which appellate jurisdiction would lie in
this Court. Although the district court declared the Rule t o be unconstitutional,
because its judgment concerned an administrative rule, this Court does not have
appellate jurisdiction. The proper forum for an appeal concerning the LCB’s rules
and regulations is the court of appeal. See La. Const. art. V, §10 (A).
While we cannot exercise appellate jurisdiction in this case at this time, this
Court has the authority to exercise supervisory jurisdiction under La. Const. art. V,
§ 5 (A).2 As we noted in Unwired Telecom Corp. v. Par. of Calcasieu, 2003-0732,
p. 8 (La. 1/19/05), 903 So. 2d 392, 400 , “the constitutional grant of supervisory
authority to this court is plenary, unfettered by jurisdictional requirements, and
exercisable at the complete discretion of the court.” Thus, although we have “respect

2 Louisiana Constitution article V, § 5 (A) provides that “[t] he supreme court has general
supervisory jurisdiction over all other courts.”

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for the indepe ndence of other courts ” and certainly want “ to avoid usurping . . .
appellate jurisdiction not conferred upon us by the constitution,” we have historically
exercised “supervisory jurisdiction when [we] deem[ed] it necessary.” Id., 2003-
0732, p. 9, 903 So. 2d at 400. We have exercised supervisory jurisdiction, for
example, in the interest of judicial economy (State v. Peacock , 461 So. 2d 1040,
1041 (La. 1984)(“since this case has already been briefed and argued in this court,
judicial economy will best be served by exercising our supervisory jurisdiction ”),
and to avoid further delay (Mayeux v. Charlet, 2016-1463, p. 7 (La. 10/28/16), 203
So. 3d 1030, 1035 (“Because resolution of this issue would greatly aid the parties
and the courts as well as avoid further delay[,] . . . we find it appropriate pursuant to
our supervisory authority to now resolve this question of law, especially in view of
the District Court declaring La. Child. Code art. 609 unconstitutional.”).
In the present matter, we find that the exercise of our supervisory jurisdiction
serves both purposes – it avoids further delay and is in the interest of judicial
economy. The latter is particularly significant under the circumstances of this case
because, as will be discussed more fully herein, we find that the trial court properly
found LAC 46:XIII.1503 C to be unconstitutional. As the only issue in this appeal
is the constitutionality of the Rule,3 no purpose would be served by remanding th is
case to the appellate court before review would inevitably be sought in this Court.
We do not intend our decision to exercise supervisory jurisdiction in this case
to have the effect of converting an administrative rule or regulation to a “law or
ordinance” for the purposes of La. Const. art. V, § 5 (D)(1). Nor do we intend our
decision to set any precedent as to the future exercise of this Court’s supervisory

3 The constitutionality of LAC 46:XIII.1505 (governing the submission of annual reports) was also
raised in this case; however, as discussed herein, this appeal is limited to the constitutionality of
LAC 46:XIII.1503 C.

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jurisdiction when a n administrative rule or regulation has been declared
unconstitutional.4
We now turn to the merits of this case.
FACTUAL AND PROCEDURAL BACKGROUND
Westlawn owns and operates a perpetual or endowed care cemetery located
in Gretna, Louisiana. This type of cemetery is defined as “a cemetery wherein lots
and other interment spaces are sold or transferred under the representation that the
cemetery will receive perpetual or endowed care .” La. R.S. 8:1(34). Perpetual or
endowed care cemeteries have existed since 1908, when the Louisiana legislature
“enact[ed] special legislation for the perpetual upkeep of cemetery lots.” Metairie
Cemetery Ass’n v. United States , 282 F.2d 225, 228 (5th Cir. 1960). Section 1 of
Act 190 of 1908, thus provided that “[a]ny burial lot or tomb in any cem etery
controlled by any company . . . incor porated for cemetery purposes may, by the
owner or owners, be conveyed or willed back to and held by the company . . . in
perpetual trust for the purpose of its preservation as a place of burial and shall
thereafter remain forever inalienable by act of the parties.”
Cemeteries in gen eral, and perpetual or endowed care cemeteries, in
particular, are governed by Title 8 as amended and reenacted in 1974 by Act 417 of
the Louisiana L egislature. In conjunction with the reenactment of Title 8, the
legislature created the LCB for the purpose of “enforce[ing] and administer[ing] [its]
provisions.” La. R.S. 8:66. Included in its duties is the overseeing of perpetual or
endowed care cemeteries.
Before any corporation may operate as a perpetual or endowed care cemetery,
it must first establish a trust fund in the amount of $50,000.00 for that care. La. R.S.
8:454. Once a trust fund is established, “a minimum of ten percent of the gross sales

4 The exercise of our supervisory jurisdiction in this case should not be viewed as approbation of
those who have prematurely presented it for our consideration.

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price received for any interment space sold or transferred under the representation
that such interment space shall receive perpetual or endowed care shall be deposited
in the trust fund ,” although the owner of the cemetery is entitled to first be
reimbursed for the initial amount deposited in the trust. La. R.S. 8:454.1 C.
Use of a perpetual or endowed care trust fund is limited, as is explicitly set
forth in La. R.S. 8:454.1 A, which provides as follows:
The principal of the trust fund shall remain permanently
intact and only the income therefrom shall be expended.
The income shall be used solely for the care of those
portions of the cemetery in which interment spaces have
been sold with a provision for perpetual or endowed care.
It is the intent of this Section that the income of said fund
shall be used solely for the care of interment spaces sold
with a provision for perpetual or endowed care and for the
care of other portions of the cemetery immediately
surrounding said spaces as may be necessary to preserve
the beauty and dignity of the spaces sold. The fund or its
income shall never be used for the development,
improvement, or embellishment of unsold portions of the
cemetery so as to relieve the cemetery authority 5 of the
ordinary cost incurred in preparing such property for sale.

(Footnote added). In furtherance of this statutory provision , La. R .S. 8:454.1 B
requires that a perpetual care cemetery “be maintained in a reasonable condition
which shall include but not be limited to leveling of grounds where interments have
been made, removal of all debris, mowing, and edging, resulting in a well -kept
appearance at all times.”
All perpetual or endowed care cemeteries ar e required by La. R.S. 8:455 to
file annual reports with the trustee no later than “ninety days after the close of the
business year . . . setting forth the volume and the gross selling price of sales upon
which a deposit with the trustee is required by this chapter.” No later than sixty days
thereafter, the trustee must file with the LCB an annual report setting forth:
(a) All receipts and disbursements of cash, all receipts and
deliveries of other trust property during the regular

5 A “cemetery authority” is defined as “any person, firm, corporation, limited liability company ,
trustee, partnership, association or municipality owning, operating, controlling or managing a
cemetery or holding lands within this state for interment purposes.” La. R.S. 8:1(8).

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business year of the cemetery authority, and a detailed
list of all items of trust property in the trust at the end
of each year.

(b) A statement showing the total amou nt of the
endowment and perpetual care trust funds invested in
each of the investments authorized by law, and the
amount of cash on hand not invested.

La. R.S. 8:456 A(1). Perpetual or endowed care cemeteries are also required to
annually file a written report with the LCB setting forth details of their operation,
including the number of interment spaces sold, the amount of gross sales, the fair
market value of the spaces, and the amount of deposits owed to the trust fund for the
reporting period and the dates the funds were deposited with the truste e. La. R.S.
8:466. These reports are due on or before June 30 of each year. Id.
The LCB is required to examine the endowment care funds of each cemetery
when deemed necessary but no less than once every three years, when it finds that a
cemetery or trustee has failed to file the required reports , or when petitioned by no
less than twenty -five interment owners who allege that the funds are not in
compliance with Title 8. La. R.S. 8:461 A . If, from the re ports or from other
examination, the LCB finds “that there has not been collected and deposited in the
endowment or perpetual care fund the minimum amounts required by this Title, the
board shall require such cemetery authority to comply immediately with s uch
requirement.” La. R.S. 8:464 A.
Over the years, the LCB has adopted rules for the cemetery industry which
are codified in the Louisiana Administrative Code. See LAC 46:XIII.101. Its
authority to do so is derived from La. R.S. 8:67, which enables the LCB to “establish
necessary rules and regulations for the administration and enforcement of [Title 8]
and prescribe the form of statements and reports provided [by Title 8] ” so long as

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the “rules and regulations [do not] conflict with or [are not] contrary to any of the
provisions of this title or of R.S. 49:951, et seq.”6 La. R.S. 8:67.
The rule at issue in this matter, LAC 46:XIII.1503, was promulgated in 1982
and revised in 2013 to provide as follows:7
A. The principal of the trust fund shall remain
permanently intact and only the income shall be
expended.

B. The net income, after the deduction of costs associated
with the operation of the trust, may be remitted to the
cemetery for care and maintenance of the cemetery as
provided for by title 8. A cemetery or cemetery
authority may not charge the trust for administrative
costs for the operation of the cemetery or trust funds.

C. All income received by the trustees of cemetery care
funds, which is not remitted to the cemetery authority
within 120 days after the end of the latest tax reporting
year of the cemetery authority, owning or operating a
cemetery for which the trust fund is maintained, shall
become, for all purposes, part of and added to the
corpus or principal of the t rust, and may not be
withdrawn or distributed.

It is subpart C that is the focus of this appeal.
According to the allegations in this lawsuit, in January, 2019, the LCB issued
a formal notice to Westlawn to appear at an informal proceeding with the LCB’s
director and its attorney to discuss Westlawn’s alleged failure to comply with the
Rule. The LCB maintai ned that the Trustees had disbursed $392,657.30 of trust
income to Westlawn more than 120 days after the close of Westlawn’s tax reporting
years between 2002 and 2017 in violation of the Rule. The LCB sought the return
of this sum to the principal of the Trust.
Westlawn then filed a Petition for Declaratory Judgment (“Petition”), seeking
a determination that the Rule is unconstitutional because it exceeds LCB’s statutory

6 La. R.S. 49:951, et seq., is the Administrative Procedure Act.

7 The original version of this rule was found at LAC 46:XIII.1303 and included only the substance
of current subsection C.

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authority to promulgate rules and regulations, and directly conflicts with La. R.S.
8:454.1, which restricts the use of trust income to the care and maintenance of
interment spaces. Westlawn also sought a declaratory judgment finding that it is not
required to return the income of the trust which was used for the cemetery’s
maintenance and care.8
Westlawn and the LCB filed motions for (partial) summary judgment
concerning the constitutionality of the Rule, with the LCB taking the position that
the Rule is constitutional as a properly promulgated, valid and reasonable
“implementation of statutory law” that does not exceed the LCB’s delegated
authority.9 Before the district court considered the motions, the p arties engaged in
extensive litigation concerning whether the matter was required to first proceed to
an administrative hearing. 10 When the district court ultimately considered the
motions, it found that LAC 46:XIII.1503 C is not facially unconstitutional, granting
LCB’s motion, in part, and denying Westlawn’s motion .11 The district court
remanded the matter to the LCB for a full administrative hearing on the merits.
Westlawn then filed a motion for new trial, arguing that the district court’s
ruling was contrary to the law and evidence. After a hearing, the district court agreed
with Westlawn, found its prior ruling to be “clearly contrary to the law and
evidence,” and entered judgment declaring LAC 46:XIII. 1503 C to be
unconstitutional on its face. In its written reasons for judgment, the district court

8 Additionally, the Petition sought a judgment declaring that LAC 46:XIII.1505 is unconstitutional
and that the LCB has complied with all of Title 8’s reporting requirements.

9 The LCB also filed exceptions of no cause of action, no right of action and nonjoinder of a party.

10 The issue of whether review by an administrative agency is required before relief can be sought
in the district court was litigated, with the last ruling of the court of appeal indicating that agency
review is not a prerequisite to filing a declaratory ju dgment action in the district court when the
allegations challenge the constitutionality of an administrative rule because an “agency is not
authorized to determine the constitutionality of its own regulations.” Westlawn Cemeteries. L.L.C.
v. The Louisian a Cemetery Board , 20 20-250, 20 20-281, 20 20-337 (La. App. 5 Cir.
1/11/21)(unpub.). Supervisory review of this decision was not sought in this Court.

11 In that judgment, the district court also found LAC 46:XIII.1503 A and B to be constitutional.

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noted that legislative power rests exclusively with the legislature and may not be
delegated, although administrative or ministerial functions may be delegated to an
agency. It then noted tha t an agency “has the power to ‘fill up the details’ by
prescribing administrative rules and regulations, ” citing State v. Alfonso , 99-1546
(La. 11/23/99), 753 So. 2d 156, 161. Finding that the LCB exceeded the authority
granted to it by adopting a rule that “take[s] trust income from a trustee,” the district
court stated:
In reality, [the Rule] does not enforce any provisions of
Title 8. It merely penalizes a trustee for violating what
appears to be an arbitrary time line adopted by the [LCB]
for remitting trust income to the cemetery authority. Other
than requiring an annual report from the cemetery
authority and the trustee, Title 8 does not promulgate any
deadlines for the disbursement of trust income to a
cemetery authority. Again, La. R.S. § 8:465 grants the
trustee the discretion to handle the permanent disposition
of the funds.12

(Footnote added). From this judgment, the LCB applied to this Court, seeking a
reversal of the district court’s judgment. Westlawn answered the appeal, seeking to
have the Rule declared unconstitutional both facially and “as applied” because,
Westlawn contends, the Rule violates substantive due process rights , is “void for
vagueness under the due process clause of the Fourteenth Amendment and Article
1, § 2 of the Louisi ana Constitution” and is an improper exercise of primary
legislative authority. The answer to appeal further seeks a determination that
subparts A and B of LAC 46:XIII.1505 are unconstitutional.
DISCUSSION
The only error assigned by the LCB concerns the district court’s determination
that the Rule is unconstitutional. Therefore, t he sole issue before this Court is the

12 La. R.S. 8:465 A provides that “[a]ll funds held in trust for perpetual care purposes shall be
administered by the trustee with such skill and care as a man of ordinary prudence, discretion, and
intelligence would exercise in the management of his own affairs, not in regard to speculation but
in regard to the permanent disposition of his funds, considering the probable income as well as the
probable safety of his capital . . . .”

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constitutionality of LAC 46:XIII. 1503 C. While the LCB focuses mainly on this
issue, it also argues that this case should have first proc eeded through the
“mandatory process for the review of agency action” as provided by the Louisiana
Administrative Procedure Act.13
Louisiana Supreme Court Rule VII § 4(3) requires an appellant’s brief to
contain “a specification of the alleged errors comp lained of.” Because the issue of
administrative review was not raised as an assignment of error, nor briefed, it is not
properly before this Court. See, e.g., Bonnette v. Conoco, Inc ., 2001-2767, p. 10
(La. 1/28/03), 837 So. 2d 1219, 1227; State v. Smith, 418 So. 2d 515, 524 (La. 1982).
The LCB further maintains that there is “no factual record in this case,” and
that “[o]nly through that mandatory process can any adjudicatory body meaningfully
and properly analyze the [parties’] allegations, including an y alleg ation of
unconstitutionality.” Although we disagree with the LCB that a more detailed
factual record is necessary in this case for the determination of the Rule’ s
constitutionality,14 we do not address this issue, as it was neither included nor briefed
by the LCB as an assignment of error.
Standard of review
This case comes before the Court on the grant of a motion for new trial, which
granted, in part, Westlawn’s Petition .15 Under La. C.C.P. art. 1972 (1), w hen a
judgment “appears clearly contrary to the law and the evidence ,” a motion for new
trial “shall be granted.” The applicable standard of review of a judgment granting a
motion for new trial is whether the district court abused its discretion. Pitts v.

13 The issue of whether the parties were required to seek relief through the Admin istrative
Procedure Act is not at issue in this case. See footnote 10, supra.

14 See, e.g., Moore v. RLCC Techs., Inc ., 95-2621, p. 3 n.2 (La. 2/28/96), 668 So. 2d 1135, 1137
(“the sole issue before the court on this direct appeal is the constitutionality of Section 1032 on its
face. Therefore, there is no factual issue before this court. . . .”).

15 Westlawn’s motion for new trial reiterated its contention that the Rule is facially
unconstitutional, specifically limiting its argument to its contention that the Rule violates the
separation of powers provision of La. Const. art. II, § 2.

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Louisiana Med. Mut. Ins. Co., 2016-1232, p. 10 (La. 3/15/17), 218 So. 3d 58, 66. In
the instant matter, as discussed more fully below, because the district court’s finding
that the Rule is constitutional “appear[ed] clearly contrary to the law,” it was
required to grant Westlawn’s motion for new trial; there was no abuse of the district
court’s judgment in granting this motion.
In addition to granting the new trial motion, the judgment also granted the
petition for declaratory judgment, in part. The declaratory judgment action provides
a method by which a court may “declare rights, status, and other legal relations
whether or not further relief is or could be claimed.” La. C.C.P. art. 1871. Its
purpose “is simply to establish the rights of the parties or express the opinion of the
court on a question of law without ordering anything to be done .” MAPP Const.,
LLC v. Amerisure Mut. Ins. Co., 2013-1074, p. 7 (La. App. 1 Cir. 3/24/14), 143 So.
3d 520, 528. A declaratory judgment action is an appropriate means of testing the
constitutionality of a statute, an ordinance, or as here, an administrative rule. See,
e.g., Robertson v. Caddo Par., La., 36,540, p. 3 (La. App. 2 Cir. 12/11/02), 833 So.
2d 1139, 1141; Liberto v. Rapides Par. Police Jury , 95-456, p. 7 (La. App. 3 Cir.
11/2/95), 667 So. 2d 552, 556; Vonderhaar v. Par. of St. Tammany, 633 So. 2d 217,
225 (La. App. 1 Cir. 1993).
Like a ruling on a motion for new trial, the decision to grant or deny
declaratory relief is left to the wide discretion of th e district court. See Louisiana
Supreme Ct. Comm. on Bar Admissions ex rel. Webb v. Roberts, 2000-2517, p. 3
(La. 2/21/01), 779 So. 2d 726, 728; Succession of Robinson, 52,718 (La. App. 2 Cir.
6/26/19), 277 So. 3d 454, 458, writ denied, 2019-1195 (La. 10/15/19), 280 So. 3d
613. Although this decision is subject to an abuse of discretion standard of review,
the judgment itself is still reviewed under the appropriate standard of review. Fondel
v. Fondel, 2020-221, p. 4 (La. App. 3 Cir. 3/10/21), 312 So. 3d 1180, 1183, writ
denied, 2021-0655 (La. 9/27/21), 324 So. 3d 93; Martin v. Martin, 52,401, p. 6 (La.

12

App. 2 Cir. 11/14/18), 261 So. 3d 984, 989. Thus, questions of law are reviewed de
novo, while questions of fact are subject to a manifest -error standard of review.
Fondel, 2020-221, p. 4, 312 So. 3d at 1183. The determination of whether a statute
or, in this case, an administrative rule, is constitutional presents a question of law,
which is reviewed by this Court de novo. See City of New Orleans v. Clark, 2017-
1453, p. 4 (La. 9/7/18), 251 So. 3d 1047, 1051 (citing State v. Webb, 2013-1681, p.
4 (La. 5/7/14), 144 So.3d 971, 975); Mid-City Auto., L.L.C. v. Dep’t of Pub. Safety
& Corr., 2018-0056, p. 10 (La. App. 1 Cir. 11/7/18), 267 So. 3d 165, 175.
Constitutionality principles, generally
“All statutory enactments are presumed constitutional.” Carver v. Louisiana
Dep’t of Pub. Safety, 2017-1340, p. 5 (La. 1/30/18), 239 So. 3d 226, 230); see also,
Calcasieu Par. Sch. Bd. Sales & Use Dep’t v. Nelson Indus. Steam Co., 2021-00552
(La. 10/10/21), --- So. 3d ----, ----, 2021 WL 5860861 at *6; State v. Hatton, 2007-
2377, p. 13 (La. 7/1/08), 985 So. 2d 709, 719 . This presumption is based on t he
premise that “legislators are presumed to have weighed the relevant constitutional
considerations in enacting legislation.” Carver, 2017-1340, p. 5, 239 So. 3d at 230;
Greater New Orleans Expressway Comm’n v. Olivier, 2004-2147, p. 4 (La. 1/19/05),
892 So. 2d 570, 573 (“Because legislators owe the same duty to obey and uphold the
constitution as do judges, legislators are presumed to have weighed the relevant
constitutional considerations in enacting legislation.”).
The presumption of constitutionality applies equally to ordinances. Fransen
v. City of New Orleans , 2008 -0076, p. 10 (La. 7/1/08), 988 So. 2d 225, 233 ;
Plaquemines Par. Civ. Serv. Comm’n v. Plaquemines Par. Council, 2017-0449, p. 6
(La. App. 4 Cir. 2/14/18), 241 So. 3d 1040, 1045; Harris v. Jefferson Par. President
& Par. Council , 2012-715, p. 10 (La. App. 5 Cir. 5/23/13), 119 So. 3d 603, 608 .
Like a statute enacted by the legislature, an ordinance “ is understood to mean a
legislative act of a municipality.” Chapman v. Bordelon, 138 So. 2d 1, 5 (La. 1962).

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An administrative agency rule, on the other hand, is not one enacted by a legislative
body, and this Court has yet to apply the presumption of constitutionality to an
administrative agency rule, although at least one court has. See Mid-City Auto.,
2018-0056, p. 10, 267 So. 3d 165.
The presumption of constitutionality is significant ; “[b]ecause of the
presumption . . . , in determining the validity of a con stitutional challenge, a Court
‘must construe a statute so as to preserve its constitutionality when it is reasonable
to do so.’” Carver, 2017-1340, 239 So. 3d at 230; M.J. Farms, Ltd. v. Exxon Mobil
Corp., 2007-2371, p. 22 , 998 So. 2d 16, 31 . Additionally, “[b] ecause statutes are
presumed constitutional, the party challenging the statute bears the burden of
proving its unconstitutionality.” Fransen, 2008-0076, p. 11, 988 So. 2d at 234; see
also, State in Int. of D.T ., 2019-01445 (La. 4/3/20) , --- So. 3d ----, ----, 2020 WL
1670730 at *3 (internal citations omitted)( “‘Statutes are presumed to be valid, and
the constitutionality of a statute should be upheld wherever possible. . . .’ When a
statute is challenged as being unconstitutional on its face, . . . the moving party bears
an especially heavy burden to establish that ther e is no other interpretation or
circumstance under which the law would be constitutional.”)
Administrative agencies do not perform legislative functions and are not made
up of elected officials who owe a duty to uphold the constitution. Unlike an elected
legislature, an administrative agency is not presumed to have weighed principles of
constitutionality in promulgating its rules and regulations. Therefore, we decline to
adopt a rule that administrative rules and regulations are presumed constitutional.
We do, however, find it proper to place the burden of proving unconstitutionality on
the party challenging the administrative rule, as is clearly the case with statutes or
ordinances. Placing the burden of proof on the party challenging a rule is consistent
with other situations whereby the moving party has the burden of proof ( e.g.,
summary judgment motions and exceptions).

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We now turn to the constitutional provisions applicable to the instant matter.
The powers of the state’s government are divided by the Louisiana
Constitution into three separate branches: legislative, executive, and judicial. La.
Const. art. II, § 1. Unless “otherwise provided by [the] constitution, no one of these
branches, nor any person holding office in one of them, shall exercise power
belonging to either of the others. ” La. Const. art. II, § 2 . Thus, the Legislature,
alone, has legislative power; the delegation of this power, as a general rule, is
prohibited. Krielow v. Louisiana Dep’t of Agric. & Forestry, 2013-1106, p. 5 (La.
10/15/13), 125 So. 3d 384, 388 ; see also , State v. Miller , 2003 -0206, p. 4 (La.
10/21/03), 857 So. 2d 423, 427 (“legislative power, conferred under constitutional
provisions, cannot be delegated by the Legislature either to the people or to any other
body of authority.” )(quoting City of Alexandria v. Alexandria Firefighters
Association, 220 La. 754, 57 So.2d 673 (1952)).
There is a well -recognized e xception to this principle. “[T]he legislative
branch has the authority to delegate to administrative boards and agencies of the
State the power to ascertain and determine the facts upon which the laws are to be
applied and enforced.” Krielow, 2013-1106, p. 5, 125 So. 3d at 388. That is, as the
district court in this case noted, the legislature “ may confer upon administrative
officers in the executive branch the power to ‘f ill up the details ’ by prescribing
administrative rules and regulations. ” Alfonso, 99-1546, p. 7, 753 So. 2d at 161.
Accordingly, “administrative and ministerial functions may, by statute, be delegated
to an agency in the executive branch.” Id., 99-1546 p. 6, 753 So.2d at 160. These
principles recognize that the “delegation of certain a dministrative functions is
necessary because of the vast amount of governmental functions that are vested in
the legislative branch, which cannot possibly enact and re -enact detailed laws to
cover every situation during rapidly changing times.” Krielow, 2013-1106, pp. 5-6,
125 So. 3d at 388-89 (quoting Alfonso, 99-1546, p. 6, 753 So. 2d at 160).

15

Importantly, however, “[a]n agency exercising delegated authority is not free
to pursue any and all ends, but can assert authority only over those ends which are
connected with the task delegated by the legislative body. The open -ended
discretion to choose ends is the essence of legislative power, and it is this power that
the legislature possesses and agencies lack .” Alfonso, 99-1546, p. 9, 753 So. 2d at
162. (Citation omitted). The rules and regulations promulgated by an agency thus,
may not exceed the authority delegated to it by the legislature. In re Tillman, 2015-
1114, p. 15 (La. 3/15/16), 187 So. 3d 445, 455. “So long as [a] 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 prescribed limits some fact upon which the law by its own terms
operates, such regulation is administrative and not legislative in its nature.” Tillman,
2015-1114, p. 15, 187 So. 3d at 455 (quoting Schwegmann Brothers Giant Super
Markets v. McCrory, 112 So.2d 606, 613 (1959)).16
To establish that a statute, or as here, an administrative rule, is facially
unconstitutional,17 the party challenging it “must establish that no set of
circumstances exists under w hich [it] would be valid, that is, that the law is
unconstitutional in all its applications.” LaPointe v. Vermilion Par. Sch. Bd., 2015-

16 The oft-cited Schwegmann case established a three-prong test to determine whether a delegation
of authority to an administrative agency is constitutionally valid . In this case , the delegation of
authority to the LCB is found in La. R.S. 8:67, which, as noted, provides the LCB with aut hority
to establish rules and regulations. It is not the constitutionality of this delegation of authority that
is at issue in this case, but whether the Rule is constitutional. See Comeaux v. Louisiana Tax
Comm’n, 2020 -01037, p. 15 n.18 (La. 5/20/21), 3 20 So. 3d 1083, 1093 (“The district court
erroneously addressed whether the enabling statutes pursuant to which the Commission
promulgated Section 3103(Z), . . . are constitutional delegations of authority under Schwegmann .
. . . Neither the Assessor’s original petition for declaratory judgment nor the Assessor and LAA’s
motion for partial summary judgment challenged the constitutionality of the Legislature ’s
delegation of authority to the Commission. Instead, the relevant question presented is whether the
Commission exceeded the authority delegated to it or unconstitutionally infringed on the powers
of the Assessor.”).

17 As we noted in Comeaux, “[w] hen a legislative instrument conflicts with a constitutional
provision, the legislative instrument must fall. . . . Logically, w e apply the same standards when
addressing whether an administrative regulation conflicts with the Constitution.” Id., 2020-01037,
p. 19, 320 So. 3d at 1096.

16

0432, p. 10 (La. 6/30/15), 173 So. 3d 1152, 1159-60. “In determining whether a law
is facially invalid, the court ‘must be caref ul not to go beyond the statute’ s facial
requirements and speculate about hypothetica l or imaginary cases. ’” Id. (Citation
omitted).
Constitutionality of the Rule (LAC 46:XIII.1503 C)
As noted, the Rule was promulgated by the LCB under the authority provided
to it by La. R.S. 8:67 to establish “necessary rules and regulations ” for it to
administer and enforce Title 8. Subpart A of the Rule reiterates the legislature’s
intent set forth in La. R.S. 8:454.1 A that “[t]he principal of the trust fund shall
remain permanently intact and only the income shall be expended .” The Rule, in
subpart B, allows net income to be remitted to a cemetery for its care and
maintenance after costs have been deducted. Subpart C, the focus of this appeal,
requires all income not remitted to a cemetery authority within 120 days after the
end of its tax reporting year to be added to and become a permanent part of the
corpus or principal of the trust. Consistent with Subpart A of the Rule and La. R.S.
8:454.1 A, Subpart C further provides that this income, once added to the principal,
“may not be withdrawn or distributed.”
It is the LCB’s position, generally, that the Rule is a “constitutional and valid
promulgation pursuant to a legislative grant of authority ,” because under
Schwegmann, it neither determines what the law shall be nor involves the exercise
of primary or independent discretion. To the contrary, the LCB maintains, the Rule
“merely determines facts upon which the detailed provisions o f La. R.S. 8:454.1 C
operates.” That is, because La. R.S. 8:454.1 C requires a minimum of ten percent of
gross sales of perpetual interment spaces to be deposited in the trust, the Rule merely
determines facts upon which this statute operates. Thus, the LCB argues the Rule is
administrative rather than legislative in nature and simply “sets forth the mechanism

17

by which the relevant statutes are effectuated,” consistent with the statutory authority
granted to it.
In support of its position in this case, the LCB maintains that the Rule was
promulgated to protect perpe tual trust income . The Rule ’s 120 -day deadline, it
argues, “is strictly for the remittance of the income to the cemetery by the trustee.”
That income “never belong[ed] to the cemetery operator” but is held in trust “for the
benefit of the consumers who paid into the trust.” Any amounts not remitted , the
LCB maintains, “are not lost” but are “used to enhance the trust,” and, thus, the Rule
serves the purpose of protecting trust income and “maximizing the long -term
viability of perpetual care trusts.” That is, the larger the trust, the more income it
generates for the maintenance of a cemetery. Furthermore, the LCB submits, the
Rule assists the trustees “by ensuring that the trustee can invest unused income rather
than letting it languish and it helps th e trustee fulfill the duties of protecting,
maximizing, and accounting for the trust funds.”
The LCB takes the further position that, inasmuch as the income must to be
used to maintain a cemetery in a reasonable condition , and the legislature provided
a no n-limited list of ways by which this is to be accomplished ,18 the Rule’s
requirement that income be distributed for that purpose “within a set timeframe is
reasonable . . . as it accomplishes the legislative goal of regular maintenance.”
We agree with the LCB that the legislature made clear that the interest from a
perpetual care trust fund must be used for the care and maintenance of a perpetual
care cemetery; the principal is to remain intact. We disagree with the LCB, however,
that the Rule merely determines facts upon which the provisions of La. R.S. 8:454.1
are to operate. We further disagree with the LCB that the Rule does not involve the
exercise of primary or independent discretion and is administrative in nature.

18 See La. R.S. 8:454.1 B.

18

In enacting Title 8 and, more particularly, those statutes concerning perpetual
care cemeteries and trust funds, the l egislature provided certain terms and
conditions, including the requirement that certain amounts from sales be deposited
in trust funds, that cemetery authorities and trustees comply with various reporting
requirements, and that the LCB periodically examine the trust funds. The statute
addresses the “use” of trust fund income only to require that it be solely for the care
and maintenance of interment spaces. There are no other provisions relating to the
use of trust fund income.
In promulgating the Rule, however, the LCB created a restriction as to how
trust fund income is to be “used.” Rather than allotting certain income (that income
not timely remitted by a trustee ) to a cemetery’s care and maintenance, the Rule
requires that it become part of the principal of the trust. As such, it does not serve
to advance the express mandate of La. R.S. 8:454.1 A that trust fund income be used
for a cemetery’s care and maintenance. Nor does it implement any existing law, “fill
up details,” or determine “some fact upon which the law by its own terms operates.”
Instead, it sets forth an altogether new requirement for trust fund inc ome not
contemplated by La. R.S. 8:454.1 and “determine[s] what the law shall be .” See
Tillman, 2015-1114, p. 15, 187 So. 3d at 455. Accordingly, it cannot be viewed as
merely administrative in nature.
To the contrary, the LCB clearly acted in a legislative capacity and exercised
“primary and independent discretion ” in violation of the separation of powers
doctrine when it promulgated the Rule. See Alphonso, 99-1546, p. 11, 753 So. 3d at
163 (where administrative agency “improperly exceeded its statutory authority” in
promulgating an administrative regulation, “[t]he . . . regulation is . . .
unconstitutional.”). There is no indication that the legislature intended to provide

19

the LCB with authority to allow trust fund income to be used for purposes other than
cemetery care and maintenance, e.g., conversion of income into principal.19
Our finding that the Rule’s promulgation impermissibly exceeded the
authority granted to the LCB by the legislature is consistent with other decisions of
this Court. In Arrant v. Wayne Acree PLS, Inc ., 2015-0905 (La. 1/27/16), 187 So.
3d 417, 423 , for example, this Court considered whether an administrative rule
shortening the prescriptive period for appealing the denial of a request for medical
treatment by a medical director of the Office of Workers’ Compensation in a
workers’ compensation matter exceeded the authority granted by the legislature.
The lower courts found that the director acted within his authority in promulgating
the rule, holding that a disputed claim for compensation was prescribed.
In reversing the lower court decisions, this Court reiterated the principle that
“the Legislature, after fixing a primary standard, may confer upon administrative
officers in the executive branch th e power to ‘fill up the details’ by prescribing
administrative rules and regulations .” Id., 2015-0905, p. 7, 187 So. 3d at 421.
Although the director of the Office of Workers’ Compensation had been given
“broad general authority to promulgate rules and regulations concerning the medical
treatment schedule,” the legislature had already established prescriptive periods for
claims for medical benefits. Thus, the director, in promulgating the rule , exceeded
the authority delegated by the legislature. The Court stated:
Because all of the director’ s power comes from the
enabling statute and no statute explicitly or i mplicitly
delegates to the director the power to alter the prescriptive
period plainly provided in La.Rev.Stat. 23:1209(C) for
“[a]ll claims for medical benefits payable pursuant to R.S.
23:1203,” the 15 –day [shortened] period set out in Title
40, Part I, Chapter 27, Section 2715(B)(3)(f) of the
Louisiana Administrative Code cannot provide a
legitimate basis for sustaining an exception of prescription
under the facts of this case.

19 The LCB cites examples of other states which have similar provisions for perpetual trust funds;
however, as Westlawn notes, those provisions are statutes, enacted by legislative bodies and, thus,
raise no separation of powers issues.

20

Id., 2015-0905, p. 8, 187 So. 3d at 423.
We reached the same conclusion in Alfonso. At issue was an administrative
rule adopted by the Wildlife and Fisheries Commission which made criminal the
failure of fishermen to report the number of mullet caught during the mullet fishing
season. The Commission adopted the rule pursuant to the authority delegated to it
by the legislature to “‘adopt rules to regulate the taking of mullet,’ expressly stating
that such regulations ‘ shall provide for zones, permits, fees, and other provisions
necessary to implement this Section.’” Alfonso, 99-1546, p. 9, 753 So. 2d at 162.
The Court noted that the legislature had already “imposed a comprehensive statutory
reporting requirement” that included the requirement that commercial fishermen file
a monthly report indicating the quantity of each kind of fish sold. Id., 99-1546, p. 5,
753 So. 2d at 160. Thus, because the legislature only authorized the Commission to
develop rules concerning the taking of mullet, and not the reporting of mullet, the
rule unconstitutionally exceeded the authority granted to the Commission.
Similarly, in the instant matter, while the LCB had general authority to
promulgate rules and regulations to administer and enforce Title 8, the legislature
had already restricted the use of income from perpetual trust funds to cemetery care
and maintenance. The LCB’s authority did not include the power to alter the use of
that income for any other purpose, includin g its conversion into principal .
Accordingly, the LCB, in promulgating the Rule, exceeded the authority granted to
it by the legislature.
We further find that the Rule clearly conflicts with the legislative intent for
perpetual care trust funds in two ways. First, the Rule essentially grants the trustees
of perpetual care t rust funds the power of determining what happens to trust fund
income. Title 8 does not delineate when income is to be disbursed to a cemetery
authority or set forth any specific requirements about its disbursement. Subpart B

21

of the Rule, however, states that the “net income, after deduction of costs associated
with the operation of the trust, may be remitted to the cemetery for care and
maintenance of the cemetery.” (Emphasis added). The use of the term “may”
indicates that the trustees have discretion as to when (and whether) to remit income
to a cemetery authority. 20 If, for whatever reason, the trustees receive but do not
timely remit the trust income to a cemetery authority , under the Rule, the income
becomes part of the trust’s pri ncipal, where it cannot thereafter be withdrawn or
distributed. This allows the trustees to hold onto income until there is no option but
to put the income into the principal of the trust, a result inconsistent with the scheme
set forth by the legislature for perpetual care trusts.
Second, the Rule’s requirement that the income become, “for all purposes,”
“part of and added to the corpus or principal of the trust” if not timely remitted,
necessarily amounts to the “use” of income – the conversion of the income into
principal – for purposes other than the care of a cemetery. Although the LCB may
establish rules to administer or enforce Title 8, there is nothing in Title 8 which
authorizes the LCB to require income to be converted into principal. To the contrary,
because there is only one legislative mandate for the use of trust fund income, the
Rule violates La. R.S. 8:454.1 A. Moreover, Title 8 contains no provisions as to
when a cemetery authority must use income and the Rule’s requirement that it be
converted into principal if not remitted within the 120-day period impermissibly sets
forth a time limitation for the use of that income.
After our de novo review of the record, we find that the district court correctly
found LAC 46:XIII.1503 C to be unconstitutional on its face . Because of this
finding, we need not address Westlawn’s contention that LAC 46:XIII.1503 C is
also “unconstitutional as-applied.” See LaPointe, 2015-0432, p. 10, 173 So. 3d at

20 “Words and phrases m ust be read with their context and construed according to the common
and approved usage of the language.” La. R.S.1:3. “The word ‘shall’ is mandatory and the word
‘may’ is permissive.” Id.

22

1159 (“A facial constitutional challenge seeks more drastic relief than an as-applied
challenge. . . .”). Nor do we address Westlawn’s answer to appeal, raising the
constitutionality of LAC 46:XIII.1505 A and B. Although in its first judgment, the
district court found the these rules to be constitutional as well, when Westlawn filed
its motion for new trial, it expressly limited the scope of its motion to the
constitutionality of LAC 46:XIII.1503 C. 21 Likewise, the district court’s June 29,
2021 judgment on the motion for new trial makes no mention of LAC 46:XIII.1505
A and B. Accordingly, because there was no appeal of the finding in the first
judgment that LAC 46:XIII.1505 is constitutional, and it was not raised in the motion
for new trial, the issue is not properly before this Court. See, e.g., Wilson v. Compass
Dockside, Inc ., 93-1860 (La. App. 4 Cir. 3/15/94) 635 So. 2d 1171, 117 6(“the
granting of a motion for new trial sets aside and vacates the original judgment on the
issue on which a new trial has been granted . . . . Thus, when the trial court has
granted a motion for new trial, the appellate court is prohibited from reviewing the
case to determine whether the original judgment was correct. . . . [T]he only
judgment this court is allowed to review is the second judgment, issued after the
granting of the motion for new trial, which is in fact the judgment that we reviewed
in this case.”)(citations omitted, emphasis added).
DECREE
For the foregoing reasons, we find that, in promulgating LAC 46:XIII.1503
C, the LCB exceeded the authority granted to it to establish rules and regulations to
administer Title 8. The judgment of the district court declaring it to be
unconstitutional on its face is therefore affirmed.
AFFIRMED

21 The Motion for New Trial seeks “to set aside the portion of the Judgment . . . with respect to the
facial separation of powers challenge to [the Rule] as clearly contrary to the law and eviden ce.”
The supporting memorandum, too, states that “this Motion for New Trial . . . is limited to the
[Rule’] violation of the separation of powers provision of La. Const. Art. II, § 2. . . .”