author: KNOLL, Justice. KNOLL, Justice, WEIMER, J., HUGHES, J.,

text:
    Timothy John RHYMES v. Dina Constantin RHYMES.
    No. 2013-C-0823.
    Supreme Court of Louisiana.
    Oct. 15, 2013.

      James Kirk Piccione, APLC, Brenda Si-bille Piccione, Gay Lynn Babin, Lafayette, LA, for Applicant.
    Colomb & Saitta, Vincent Joseph Saitta, Paul Jerome Guilliot, Lafayette, LA, for Respondent.
   KNOLL, Justice.

| ,This final periodic spousal support case presents the res nova issue of whether homeschooling of children born of the marriage is a factor the trial court can consider when awarding final support pursuant to La. Civ.Code art. 112, The District Court found homeschooling was not a factor legally considered in the determination of final support. In a plurality opinion, the Court of Appeal affirmed. We granted writs to address the correctness vel non of the lower courts’ reasoning. Rhymes v. Rhymes, 13-0823 (La.6/28/13), 118 So.3d 1098. For the following reasons, we find the trial court is charged pursuant to La. Civ.Code art. 112 with considering all relevant factors in determining the amount and duration of final support, thus the homeschooling of children born of the marriage can be a relevant factor in the determination of such support. We, therefore, vacate the judgments of the lower courts as to this issue only and remand this matter to the District Court for further proceedings consistent with this opinion.

FACTS

Timothy John Rhymes and Dina Con-stantin Rhymes, who are both mechanical engineers, were married on September 1, 1990. Dina gave birth to- their first child, Lucy Annette Rhymes, on April 13, 1999. At that time, by the parents’ mutual consent, Dina stopped working to stay home with the child. On 12February 3, 2003, the couple’s second child, Jack William Rhymes, was born. Perceiving the public school system in Baton Rouge to be inadequate and the private school system too expensive, the parties decided Dina would homeschool the children. Dina has instructed the children since they were five years of age and continued to do so at the time of trial in this matter.

On July 1, 2008, Timothy and Dina separated, and on July 16, 2009, a judgment of divorce was rendered. Under a joint custody decree, Dina was named domiciliary parent and was awarded child support. On December 9, 2009, a consent judgment was rendered finding Dina “to be without legal fault in the dissolution of the marriage.” In accordance with La. Civ.Code arts. Ill and 112, Dina sought final support from Timothy, claiming as a factor in the determination homeschooling of their two minor children. On December 23, 2009, Timothy filed a rule to show cause why the children should not be enrolled in the public school system, alleging it is in the children’s best interest to “be provided a normal education in the Lafayette Parish School System” and the homeschooling of “the children on a rural farm ... prevents the children from having social interaction with their peers.”

At the outset of the hearing in this matter, however, the parties orally stipulated the children could be homeschooled. In brief to this Court, Timothy explains his withdrawal was not indicative of his approval of homeschooling, but rather, “because he was unprepared, then, to defeat the presumption that DINA’s decision to home-school the children was in their best interest.” During the hearing, the court-appointed educational evaluator, Lori Romero, testified “with exception of Jack’s written language skills these children were right on or above” Rtheir educational age levels and the children were “absolutely” “thriving in home school.” ■ Moreover, she opined it was in their “best interest to continue with the educational process they’ve had so far” and, although she was not appointed to evaluate the children’s social interactive skills, their social abilities were “absolutely appropriate.”

On July 10, 2012, the District Court found Dina was entitled to final support in the amount of $500 per month for a period of twelve months and to a payment not to exceed $2,400 for a course of study, which would enable her to update her training as a mechanical engineer. Régarding the issue of homeschooling, the District Court specifically found:

It is the opinion of the Court that the law. does not support such a consideration.
LSA-C.C. Art. 112 lists the factors to be considered and home schooling is not one of the factors.
Although some language in Donna G.R. v. James B.R., [89,005 (La.App. 2 Cir. 7/2/04),] 877 So.2d [116] [1164, writ denied, 04-1987 (La.9/3/00), 882 So.2d 550] gives support to defendant’s position that home schooling has implications for spousal support, the holding rejects that consideration.
Another C.C. Art. is also pertinent to this decision. Art. 227. Parents have an obligation to support, maintain and educate children. One spouse cannot choose the education obligation to exclusion of the other’s.

Dina appealed the judgment, raising as her only assignment of error the District Court’s finding homeschooling was not a factor in determining final support. A plurality of the Court of Appeal, Third Circuit, agreed with the District Court and affirmed its decision. Rhymes v. Rhymes, 12-1184 (La.App. 3 Cir. 3/13/13), 110 So.3d 286. In reaching this conclusion, Judge Gremillion reasoned in the plurality opinion:

... the main competing interests are the duty owed by a spouse to support her children and her voluntary unemployment versus that spouse’s right to make major decisions regarding her children’s education. We agree with the trial court here ... that a spouse’s voluntary unemployment in order to hom-eschool cannot be attributed to the other spouse in determining final periodic support. Louisiana Revised Statute 9:315.11 states an absolute that an underemployed/unemployed party’s potential income shall be attributed to them unless one of the circumstances listed exists. None do here. It is the legislature’s province to provide an exemption for parents choosing to homeschool, and it did not do so in La.R.S. 9:315.11.

Id. at p. 4, 110 So.3d at 288-89. The opinion further reasoned final support is based on the basic needs of the recipient party in order to sustain life and assist the spouse in returning to the workforce; however, “homeschooling is simply not a basic need as envisioned by the legislature in determining final periodic support, and the duty to support one’s children outweighs a parent’s desire to homeschool them.” Id. at p. 4,110 So.3d at 289.

In his concurring opinion, Judge Amy cautioned against both the parties’ and the majority’s melding of spousal support concepts with custody and child support concepts, which were extraneous to the limited question before the courts. In this regard, Judge Amy would have refrained from considering the issue of voluntary unemployment under La.Rev.Stat. § 9:315.11 and would not have.entertained an inquiry into whether homeschooling was in the children’s best interest as such was removed by the parties’ joint stipulation homeschooling would continue. However, in the context of the evidence presented and La. Civ.Code art. 112, Judge Amy believed the District Court’s determination was supported by the record.

Ifiln his dissenting opinion, Judge Con-ery found “Dina’s need for final spousal support must be judged with the historical and continued agreement for Dina to stay home, care for, and homeschool the children rightfully considered.” Rhymes, 110 So.3d at 291. In so finding, Judge Conery relied on the fourth factor under La. Civ. Code art. 112 — “the effect of custody upon the party’s earning capacity” — reasoning Dina’s “custody” included the historic and continuing homeschooling of the children. In his view, Dina’s homeschooling is a relevant factor under La. Civ.Code art. 112.

DISCUSSION

The sole issue before this Court is whether homeschooling is a legal factor in determining final support. As this issue is strictly a legal one involving the interpretation of our Civil Code provisions, we review the lower courts’ rulings under the de novo standard. Sabine Parish Police Jury v. Comm’r of Alcohol and Tobacco Control, 04-1833 (La.4/12/05), 898 So.2d 1244. Moreover, our analysis is guided by well-established rules of statutory construction.

In accord with these rules, the interpretation of any statutory provision starts with the language of the statute itself. Oubre v. Louisiana Citizens Fair Plan, 11-0097, p. 11 (La.12/16/11), 79 So.3d 987, 997. When the provision is clear and unambiguous and its application does not lead to absurd consequences, its language must be given effect, and its provisions must be construed so as to give effect to the purpose indicated by a fair interpretation of the language used. La. Civ.Code art. 9; La.Rev.Stat. § 1:4; In re Clegg, 10-0323, p. 20 (La.7/6/10), 41 So.3d 1141, 1154. Unequivocal provisions are not subject to judicial construction and should be applied by giving words their generally understood meaning. La. Civ.Code art. 11; see also Snowton v. Sewerage and Water Bd., 08-399, pp. 5-6 (La.3/17/09), 6 So.3d 164, 168.

| fiWords and phrases must be read with their context and construed according to the common and approved usage of the language. La. Civ.Code art. 11; La.Rev.Stat. § 1:3. “The word ‘shall’ is mandatory and the word ‘ma/ is permissive.” La.Rev.Stat. § 1:3; Oubre, 11-0097 at 12, 79 So.3d at 997. Every word, sentence, or provision in a law is presumed to be intended to serve some useful purpose, that some effect is given to each such provision, and that no unnecessary words or provisions were employed. Colvin v. Louisiana Patient’s Compensation Fund Oversight Bd., 06-1104, p. 6 (La.1/17/07), 947 So.2d 15, 19; Moss v. State, 05-1963, p. 15 (La.4/4/06), 925 So.2d 1185, 1196. Consequently, courts are bound, if possible, to give effect to all parts of a statute and to construe no sentence, clause, or word as meaningless and surplusage if a construction giving force to and preserving all words can legitimately be found. Oubre, 11-0097 at 12, 79 So.3d at 997. With this understanding, we turn now to the relevant Civil Code provisions.

Under La. Civ.Code art. Ill, the trial court is granted the discretion to award final support to a party who is in need of support and who is free from fault in the dissolution of the marriage:

In a proceeding for divorce or thereafter, the court may award interim periodic support to a party or may award final periodic support to a party who is in need of support and who is free from fault prior to the filing of a proceeding to terminate the marriage in accordance with the following Articles.

La. Civ.Code art. 111. In determining the amount and duration of final support, La. Civ.Code art. 112 provides:

A. When a spouse has not been at fault and is in need of support, based on the needs of that party and the ability of the other party to pay, that spouse may be awarded final periodic support in accordance with Paragraph B of this Article.
B. The court shall consider all relevant factors in determining the amount and duration of final support. Those factors may include:
|7(1) The income and means of the parties, including the liquidity of such means.
(2) The financial obligations of the parties.
(3) The earning capacity of the parties.
(4) The effect of custody of children upon a party’s earning capacity.
(5) The time necessary for the claimant to acquire appropriate education, training, or employment.
(6) The health and age of the parties.
(7) The duration of the marriage.
(8) The tax consequences to either or both parties.
C.The sum awarded under this Article shall not exceed one-third of the obligor’s net income.

La. Civ.Code art. 112 (emphasis added).

Significantly, both of these Civil Code provisions focus explicitly on the needs of the moving spouse and the ability of the other to pay, rather than on the needs of the children. In this regard, the statutory provisions on child support and custody do not come into play, and the award of final support is controlled by the provisions quoted above, most particularly La. Civ. Code art. 112.

Under its provisions, the trial court must consider all relevant factors as the Louisiana Law Institute’s employment of the term “shall” in the first sentence of paragraph B denotes: “The court shall consider all relevant factors in determining the amount and duration of final support.” La. Civ.Code art. 112(B); see also La.Rev.Stat. § 1:3; Oubre, 11-0097 at 12, 79 So.3d at 997. It then goes on to list several factors the court may consider, including such concerns as the health and age of the parties, their earning capacity, and their financial obligations. However, as evident in the clear and unambiguous use of the permissive “may” in the second sentence of paragraph B, this list is merely illustrative, not exhaustive or exclusive, requiring the trial court to consider each individual spouse and his or her corresponding needs and circumstances. Therefore, while homeschooling is not included as a specific factor for consideration, there is no specific legal exclusion |sof homeschooling as a consideration, and so, it can be considered under the clear and unambiguous provisions of La. Civ. Code art. 112, if it is relevant. The trial court erred as a matter of law in failing to consider homeschooling as a factor given the facts of this case.

Whether it is a relevant factor is to be determined on a case-by-case basis. Much as a court considers the effect of custody upon a party’s earning capacity, we find the court may likewise consider the effect the duties and obligations associated with homeschooling have on the earning capacity of the parent undertaking the children’s instruction.

In the present case, there is no dispute Dina is free from fault or that Timothy can afford to pay. The contentious issue is whether Dina, a mechanical engineer, is in need of support.

The record evidence undisputedly shows the parties agreed Dina would fore-go her career as a mechanical engineer to stay home to care for and educate the children. The parties further stipulated the children would continue to be homes-chooled by Dina, and the evidence at trial elicited from the court-appointed educational evaluator showed the children were well-educated and thriving in their homeschool environment. The proffered testimony further shows Dina’s obligation to homeschool the children has an effect on her earning capacity as she spends approximately 27.5 hours per week on school work — instructing the children in world history, geography, literature, math, physics, language arts, creative expression, handwriting, typing, and German. While Timothy urges his withdrawal of his objection to the continued homeschooling of his children does not equate to his approval of same, it is not disputed Dina continues to homeschool |9the children by stipulation of the parties as reflected in the record. Therefore, we agree with Judge Conery that Dina’s homeschooling should be a factor considered in the determination of her final support award according to La. Civ.Code art. 112.

Accordingly, we vacate the judgments of the lower courts as to this issue only and remand this matter to the District Court to consider homeschooling as a factor in determining final support in this case.

CONCLUSION

In summary, we find a trial court must consider all relevant factors in determining final support. Homeschooling the children of the marriage may be a relevant consideration in this determination. In the present case, we find the District Court erred as a matter of law in failing to consider homeschooling as a factor in the determination of final support for Dina. Accordingly, we vacate the judgments of the lower courts as to this issue only and remand this matter to the District Court for further proceedings consistent with this opinion.

DECREE

For these reasons, the judgments of the lower courts as to this issue only are vacated and this matter is hereby remanded to the District Court for further proceedings consistent with this opinion.

VACATED and REMANDED TO THE DISTRICT COURT.

KNOLL, Justice, additionally concurs.

WEIMER, Justice, concurs and assigns reasons.

HUGHES, Justice, dissents with reasons.

KNOLL, Justice,

additionally concurring.

|TI write this separate concurrence to address the concurrence of Justice Weimer’s further guidance to the District Court on remand. The only issue before the Court was the trial court’s failure in not considering homeschooling as a factor in its determination of final support. There was no issue presented to this Court as to the inability of the trial court to make a proper determination based on Dina’s needs when considering this factor. This Court should not attempt to micromanage lower court proceedings when further guidance to the District Court was not requested nor sought, rendering the concurrence an advisory opinion more than answering the issues properly before us. It is inappropriate for this Court to attempt to direct the District Court’s determination on remand.

WEIMER, J.,

concurring.

hi agree with the majority’s conclusion that homeschooling may be considered as a factor that has a bearing on a former spouse’s need for final periodic support. However, because of the procedural posture of this case, I write separately to address the burden of proof going forward. Because this court is remanding rather than itself determining whether the district court’s previous award (which disregarded homeschooling) should be amended, I emphasize that homeschooling is not the only factor to be evaluated on remand, nor is homeschooling the overriding consideration to be evaluated on remand.

The overriding consideration as it concerns a movant, when deciding whether to award the movant final periodic support, is whether the movant “is in need of support.” La. C.C. art. 112(A).

In Dina’s argument to this court, she strenuously urges that “her homeschooling responsibilities prevent her from getting a job in order to fully support herself.” In my view, nothing in the majority’s opinion accepts or rejects this argument. Instead, the majority correctly holds the district court “must consider all relevant factors in determining final support.” Rhymes v. Rhymes, 13-0828, (La.10/15/13), 125 So.3d 377, 382, 2013 WL 5788760.

| ^Therefore, on remand, although the district court must now consider the effect of homeschooling on Dina’s need for support, the district court is not bound to limit the inquiry as Dina framed it to this court. Dina has solely emphasized her homeschooling duties, claiming those duties preclude the possibility of any earnings from her training as a mechanical engineer. The district court is charged with taking a more expansive viéw. In evaluating Dina’s claimed need for support, the court is bound to reconsider all relevant factors, assigning whatever weight in its sound discretion the court deems appropriate to each factor. See La. C.C. art. Ill, Revision Comment (b) (“Article 112 ... provides the standards to be followed in making final awards.... [T]he court must consider all relevant factors, which may include any of the nine factors listed in that Article.”) (Emphasis added.); see also Hogan v. Hogan, 549 So.2d 267, 271 (La.1989) (“[A] trial court’s alimony ... order will not be reversed except for abuse of discretion.”).

As the movant, Dina ultimately bears the burden of proving her need under La. C.C. art. 112. See, e.g., McMullen v. McMullen, 11-220, p. 5 (La.App. 5 Cir. 12/13/11), 82 So.3d 418, 420, citing Skannal v. Skannal, 25,467, 26,030 (La.App. 2 Cir. 1/19/94), 631 So.2d 558 (“[A] spouse seeking permanent support has the burden of proving that she ... is in necessitous circumstances, and is in need of support.”).

In conclusion, I respectfully concur with vacating the judgments of the lower courts inasmuch as homeschooling was not properly factored in the determination of Dina’s need and, likewise, I concur with the remand. I write separately to provide further guidance to the district court on the burden of proof on remand, as described above.

HUGHES, J.,

dissenting.

|,I respectfully dissent. While I believe that home schooling is a factor to be considered in awarding final periodic spousal support (or permanent spousal support), I believe that the result reached in this case by the trial court and the court of appeal is correct and should be affirmed.

Both parents owe support to their children, and home schooling is certainly a means of providing that support. But if home schooling has been considered in setting child support, for instance by calculating the home-schooling parent’s income at less than his or her earning capacity due to the time spent home schooling, this factor should also be taken into consideration is setting spousal support. And final support is based on the “needs of that party” seeking support.

Based on the premise that the judgment controls, not the reasoning, I would affirm the trial court in this case.

      . In this regard, Timothy alludes to the presumption of La.Rev.Stat. § 9:335(B)(3) that "all major decisions made by the domiciliary parent are in the best interest of the child.”

      . Notably, both children participated in the Summer Enrichment Program through the Center for Gifted Education at the University of Louisiana at Lafayette.

      . In Donna, the trial court allowed the mother/ex-wife to continue homeschooling the three minor children of the marriage through the end of the school year and awarded final support based on this consideration. While the Second Circuit clearly found "the home school decision has implications regarding the award of permanent spousal support,” it reversed the lower court's ruling, finding homeschooling was not in the children’s best interest given their substandard work and test scores and the mother's lack of qualifications. Donna, 39,005 at pp. 6-9, 877 So.2d at 1167-69.

      . The children also participate in numerous and varied extracurricular activities, including violin, ice skating, Taekwondo, dance, acting, visual art, and golf.


source: Caselaw Access Project

author: JOHNSON, Chief Justice.

license: Public Domain

text:
    Carl KRIELOW, Glendon Marceaux, Phillip J. Watkins and Similarly Situated, Plaintiffs v. LOUISIANA DEPARTMENT OF AGRICULTURE AND FORESTRY.
    Nos. 2013-CA-1106, 2013-CA-1448.
    Supreme Court of Louisiana.
    Oct. 15, 2013.

      Department of Justice, State of Louisiana, James D. Caldwell, Attorney General, Patricia Hill Wilton, Assistant Attorney General, Emily Andrews, Assistant Attorney General, Hymel Davis & Petersen, LLC, L.J. Hymel, Jr., Tim Paul Hartde-gen, Ieyoub Law Firm, LLC, Richard Phillip Ieyoub, for Appellant (No. 2013-CA-1106).
    Bankston & Associates, LLC, Larry S. Bankston, Jenna Linn, Baton Rouge, LA, Peragine & Lorio, LLC, Alex J. Peragine, Rebecca Rosamond Urland, Covington, LA, Brittany Dooley White, for Appellee (No. 2013-CA-1106).
    Bankston & Associates, LLC, Larry S. Bankston, Jenna Linn, Baton Rouge, LA, Peragine & Lorio, LLC, Alex J. Peragine, Rebecca Rosamond Urland, Covington, LA, Brittany Dooley White, for Appellant (No. 2013-CA-1448).
    Department of Justice, State of Louisiana, James D. Caldwell, Attorney General, Patricia Hill Wilton, Assistant Attorney General, Emily Andrews, Assistant Attorney General, Hymel Davis & Petersen, LLC, L.J. Hymel, Jr., Tim Paul Hartde-gen, Ieyoub Law Firm, LLC, Richard Phillip Ieyoub, for Appellee (No. 2013-CA-1448).
   JOHNSON, Chief Justice.

|! This case is before us on direct appeal from a judgment of the district court declaring La. R.S. 3:3534(G)(2), (3) and La. R.S. 3:3544(E)(2), (3) unconstitutional. For the following reasons, we amend and affirm the ruling of the district court.

FACTS AND PROCEDURAL HISTORY

Plaintiffs are producers of rice in Louisiana. In 1972, the Louisiana Legislature enacted La. R.S. 3:3531 et seq. and La. R.S. 3:3541, et seq. This statutory scheme established the Louisiana Rice Promotion Board and the Louisiana Rice Research Board (“the Rice Boards”), with the stated purpose to promote the growth and development of the rice industry in Louisiana by promotion of rice and expanded research of rice, thereby promoting the general welfare of the people of Louisiana. |2The Rice Statutes obligate rice producers to pay an assessment on rice produced in Louisiana “not to exceed three cents per hundredweight.” However, the assessment is not imposed unless the rice producers approve it by majority referendum vote. The question of whether to impose the assessment and the amount of the assessment, subject to the “maxima” provided in the statutes, must be submitted to and approved by a majority of the rice producers who vote in the referenda. To be eligible to vote, a producer must have produced a rice crop in the year immediately preceding each referendum. If approved, the assessment is effective for five years, but may be extended indefinitely in increments of five years, by ratification and approval by a majority vote of all the rice producers who voted in the referenda. After collection, the Commissioner of Agriculture is required to pay over the funds to the Rice Boards as instructed in the Rice Statutes. The Rice Statutes originally provided any rice producer with the opportunity to request and receive a refund of the amount paid for the assessment. However, the statutes were amended in 1992 to provide that the refund is not available if the voting majority of rice producers vote to abolish the refund provisions.

Since the Rice Statutes went into effect, rice producers voting in the periodic referendums have approved the levy of an assessment. The refund provisions were |sabolished in the 1992 referendum. Plaintiffs, approximately forty rice producers, filed suit against the Louisiana Department of Agriculture and Forestry (“LDAF”) and the Rice Boards, challenging the constitutionality of the Rice Statutes both on their face and as applied.

Thereafter, plaintiffs filed a motion for summary judgment seeking to declare La. R.S. 3:3584 and La. R.S. 3:3544 facially unconstitutional on the ground those statutes permit an improper delegation of legislative authority, in violation of La. Const, art. Ill, § l. Plaintiffs argued the Rice Statutes permit a small group of private citizens to determine by majority vote whether the LDAF shall enforce and collect statutory assessments on rice, and whether the refund provisions will be abolished.

The district court granted plaintiffs’ motion for summary judgment in part, declaring those sections of the Rice Statutes relative to abolishment of the refunds, La. R.S. 3:3534(G)(2), (3) and La. R.S. 3:3544(E)(2), (3), unconstitutional. The LDAF, State of Louisiana and the Rice Boards directly appealed to this court. The | ¿Plaintiffs answered the .appeal, asserting La. R.S. 3:3534 and 3:3544 are facially unconstitutional in their entirety.

DISCUSSION

Determining whether a statute is constitutional is a legal question and thus reviewed de novo. As a result, we normally review all of the constitutional challenges advanced in the district court. Additionally, plaintiffs have cross-appealed in this ease, asserting the Rice Statutes are unconstitutional in their entirety. Thus, although the district court only held certain parts of the Rice Statutes unconstitutional, and it is that ruling before us on direct appeal, we will address the issues raised in plaintiffs cross-appeal and consider whether La. R.S. 3:3534 and 3544 are facially unconstitutional in their entirety as an improper delegation of legislative authority.

In determining the constitutionality of the Rice Statutes, we begin with the premise that statutes are generally presumed to be constitutional. And, because statutes are presumed constitutional, the party challenging the statute bears the burden of proving its unconstitutionality. Importantly, the provisions of the Louisiana Constitution are not grants of power, but instead are limitations on the otherwise plenary power of the people exercised through the legislature. Thus, the legislature may enact any legislation that the state constitution does not prohibit. In order to | Bfind legislation invalid under the constitution, it is necessary to rely on some particular constitutional provision that limits the power of the legislature.

The Louisiana Constitution divides the powers of government into three separate branches: legislative, executive and judicial. Our constitution further provides that no branch may exercise power belonging to another. The legislative power of the State rests exclusively in the Legislature. Thus, it is axiomatic that the legislature is vested with the sole law-making power of the State.

Because of the constitutional separation of powers, delegation of legislative power is generally prohibited. We have recognized “that legislative power, conferred under constitutional provisions, cannot be delegated by the Legislature either to the people or to any other body of authority.” However, as an exception to this rule, this court has recognized that the 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. We have noted that “delegation of certain administrative 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.” We have also recognized an exception for contingent legislation, where the legislation is conditional for its operation on the happening of a certain contingency or future event.

The Rice Boards generally assert the Rice Statutes are contingent legislation. Thus, the Rice Statutes do not contain a delegation of power to make the law, which necessarily involves discretion as to what it shall be, but rather confer an authority or discretion as to its execution, to be exercised under and in pursuance of the law. As to the refund provisions, the Rice Boards assert the Legislature simply made the continued implementation of the refund provisions after January 1, 1992, dependent upon a referendum of those affected. The fact that a majority of the rice producers voted to abolish the refunds did not equate to the rice producers abolishing a legislative mandate enacted by the Legislature. The assessments were only in place because the majority of rice producers voted for it. Otherwise, the refund provisions would never come into play. According to the Rice Boards, the Legislature decided that the refunds could be abolished and simply allowed the affected group to decide whether the refunds should continue to take effect.

The LDAF additionally argues the Legislature may delegate to state boards, such as the Rice Boards, the power to ascertain and determine the facts upon which the laws are to be applied and enforced. In directing by statute how the Rice Boards must be composed, the Legislature ensured that the board members would have the specialized expertise necessary to carry out the vital public interests of rice research and rice promotion. The LDAF argues the Rice Statutes do not allow anyone to “make law.” The vote of the rice producers only implements the law as the Legislature has dictated it. The LDAF asserts the Rice Statutes are complete in the 17expression of legislative will and the statutory scheme enacted to carry it out.

By contrast, the plaintiffs argue that on facial examination, the Rice Statutes clearly violate the Louisiana Constitution. The assessments established by the Rice Statutes are only imposed, extended, or refundable based on an election of private citizens, certain rice producers. Those private elections determine the very existence of the assessment, as well as its duration and character. The Legislature cannot delegate to private citizens the power to create or repeal laws. Plaintiffs also argue the Rice Statutes are not reliant on a contingent event, but rather the legislatively mandated refunds only become effective upon the happening of a referendum by private persons who, by majority vote, may force such regulation upon an unwilling minority.

Further, Plaintiffs argue the Legislature cannot create regulations or delegate actions that require officials or administrative bodies to exercise primary and independent discretion. The Rice Statutes go far beyond a delegation of ministerial authority because they expressly empower private citizens to decide whether to impose or nullify the assessments. Here, neither the Legislature nor the Rice Boards retained any discretion to approve, disapprove or modify the assessment decisions reached by the selected rice producers.

Both plaintiffs and defendants rely on United States Supreme Court decisions to support their respective positions. Plaintiffs cite the leading Supreme Court case discussing the improper delegation of legislative authority, Carter v. Carter Coal, involving the Bituminous Coal Conservation Act. The Act brought every producer of coal in the United States under its provisions. The Act, in part, delegated the power to fix maximum hours and minimum wages to certain producers and miners who | sproduced more than a particular percentage of the annual tonnage the preceding calendar year. The stockholders of Carter Coal Company brought suit against the board of directors to enjoin it from complying with the Act. The Supreme Court held this provision of the Act unconstitutional as an unlawful delegation of legislative power. The Court reasoned:

The power conferred upon the majority is, in effect, the power to regulate the affairs of an unwilling minority. This is legislative delegation in its most obnoxious form; for it is not even delegation to an official or an official body, presumptively disinterested, but to private persons whose interests may be and often are adverse to the interests of others in the same business. * * * Some coal producers favor the code; others oppose it; and the record clearly indicates that this diversity of view arises from their conflicting and even antagonistic interests. The difference between producing coal and regulating its production is, of course fundamental. The former is a private activity; the latter is necessarily a government function, since, in the very nature of things, one person may not be intrusted with the power to regulate the business of another, and especially of a competitor. And a statute which attempts to confer such power undertakes an intolerable and unconstitutional interference with personal liberty and private property.

The Rice Boards cite a subsequent Supreme Court case in support of their position. In Currin v. Wallace, the Court considered a constitutional challenge to the Tobacco Inspection Act. That Act provided in part that the Secretary of Agriculture was authorized to designate the markets where tobacco bought and sold at auction, or the products manufactured therefrom, move in commerce. However, the Secretary was not to designate a market unless two-thirds of the growers voting at a referendum favored it. The Plaintiffs, tobacco warehousemen and auctioneers, challenged the Act partly on the basis that it provided for an unconstitutional delegation of legislative power.

The Supreme Court did not find the delegation of power unconstitutional, reasoning it was “not a case where Congress has attempted to abdicate, or to transfer |3to others, the essential legislative function with which it is vested by the Constitution.” Additionally, the Court held that “the required referendum does not involve any delegation of legislative authority.” The Court stated:

Congress has merely placed a restriction upon its own regulation by withholding its operation as to a given market “unless two-thirds of the growers voting favor it.” Similar conditions are frequently found in police regulations. This is not a case where a group of producers may make the law and force it upon a minority or where a prohibition of an inoffensive and legitimate use of property is imposed not by the legislature but by other property owners. Here it is Congress that exercises its legislative authority in making the regulation and in prescribing the conditions of its application. The required favorable vote upon the referendum is one of these conditions.

Carter and Cwrrin were both addressed by this court in City of Alexandria v. Alexandria Firefighters Association. That case involved a constitutional challenge to Act 239 of 1950, which amended La. R.S. 38:1994 governing maximum hours for firemen. La. R.S. 33:1994, as amended by Act 239, provided in part:

The maximum hours of work required of firemen covered by this Subpart in cities having a population in excess of two hundred fifty thousand in any one calendar week shall be sixty hours, and in municipalities having a population of two hundred fifty thousand or less, covered by this Sub-part, seventy-two hours. * * * Provided, however, that in any municipality having a population of not less than fifteen thousand (15,000) nor more than two hundred fifty thousand (250,000) if at an election held for that purpose, the majority of the members of the fire department of any city having a maximum work week of seventy two hours, should so vote, the maximum hours of work required of firemen as herein provided in such city shall not be in excess of sixty hours in any one calendar week. * * *

Plaintiff, the City of Alexandria, filed suit alleging Act 239 constituted an unconstitutional delegation of legislative power because it delegated to the firemen the right to make laws. Specifically, the City asserted that the Legislature, by vesting |inin the firemen of the affected cities the right to change by their vote the maximum weekly working hours from severity-two to sixty, had surrendered to these individual groups its exclusive authority to legislate upon such police regulations. The defendant labor union argued, as do the defendants in this case, that the Act was permissible contingent legislation, depending on a future event, i.e., the vote of the firemen of any city of the designated class. This court held the Act unconstitutional. While recognizing the general doctrine that legislative power conferred under constitutional provisions cannot be delegated by the Legislature to the people or to any other body or authority, we also recognized an exception as to legislation conditioned for its operation upon the happening of a certain contingency or future event. We explained the reasons for the allowance of this exception:

[I]t is not always essential that a legislative act must in any event take effect as law after it leaves the hands of the legislature. If the law is in its provisions a complete, statute in other respects, its taking effect may be made conditional upon some subsequent event. When that event happens, the statute takes effect and becomes the law by force of legislative action as fully as if the time when it should take effect had been unconditionally fixed.

However, this court found Act 239 did not fall under the exception. In so doing, we specifically rejected the broad adherence to the contingency exception set forth in Currin, finding the exception applicable only to local option enactments:

And we think it manifest that the power conferred on the firemen cannot be fitted into any of the categories of permissive legislative delegation through which the fate of unconstitutionality may be averted. This is not, as counsel for appellant contend, a case wherein the assailed provision can be upheld on the basis that it is legislation which merely becomes effective upon the happening of a specified event. Laws, to be | n sustainable on the theory that they are complete in themselves but that their effectiveness is contingent upon the occurrence of an event, are generally ... local option enactments, that is, legislation which is submitted to the people of a certain locality and which is sustained as a proper delegation of legislative power because it is accepted that local judgment on such matters should control. And, although it appears in the multitudinous authorities on this subject that a few courts have extended this exception in favor of contingent legislation so as to include within its scope matters which are not truly local option laws, this Court is not among that number. On the contrary, ... our predecessors have affirmed and reaffirmed strict adherence to the principle that legislative power may not be delegated, save to municipal corporations and other local political subdivisions, and then only in such measure for which justification clearly appears by reason of the exigencies of local government and by necessity or greater convenience in the administration of public affairs. (Emphasis added).

This court further cited as an example our decision in State v. Watkins. In Watkins, the Legislature in Act 238 of 1932, provided for a referendum submitting to the electors of the State the question of whether Louisiana’s prohibition law should be repealed. We found the Act to be unconstitutional as an improper delegation of legislative power notwithstanding that the referendum was submitted to the people of the state. This court explained:

The same reasons which preclude the original enactment of a law from being referred to the people would render it equally incompetent to refer to their decision the question whether an existing law should be repealed. If the one is a plain surrender to the people of the law-making power, so is the other.
A constitutional provision that the legislative power shall be vested in a senate and assembly prohibits the legislature from convering the government into a pure democracy, or rendering the enactment of a law dependent on its acceptance by the voters of the state. It does not, however, forbid the enactment of laws delegating to the people of local subdivisions of the state the decision of questions concerning them alone, or making the operation of certain laws within such subdivisions contingent on a vote of the people thereof.

In City of Alexandria, this court distinguished and rejected the holding of Currin, finding it was “predicated entirely upon the delegation to an administrative officer of authority to find facts and exercise discretion in the application of legislative policy under proper guideposts and standards.” Further, “[t]he provision respecting the referendum by the tobacco growers, in order for the Secretary to designate a market, was merely a limitation upon his administrative authority; it was not comparable to a case like this, where the vote of the firemen and not of the Legislature effects a change in the law.” This court concluded that Act 239 constituted an improper delegation of legislative authority to a private group:

Considering the provision under attack in this case in the light of the foregoing tenents, we find it impossible to uphold it. The statute fixes the maximum hours of work for firemen in municipalities, having a population of 250,000 or less, during any calendar week at 72. This, unquestionably, the legislature had the right to do. But when it declares that the firemen in municipalities having a population of not less than 15,000 nor more than 250,000 may, by a vote of the majority of the members of the fire department, reduce the maximum work week from 72 to 60 hours, the Legislature proceeds to confer upon the majority of firemen in any and all such cities the right to change and amend the law. This is purely a legislative function which cannot be delegated to any private group.
In the case at bar, the assailed provision is of a far reaching nature in that the power is delegated to a majority of the firemen in each city within the classified population to determine whether they will work a maximum of 72 or 60 hours a week. This, to paraphrase the Supreme Court of the United States in Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 876, 80 L.Ed. 1160, “is legislative delegation in its most obnoxious form; for it is not even delegation to an official or an official body, presumptively disinterested, but to private persons ⅜ * * ” who, by a majority vote, may force the police regulation upon an unwilling minority and the taxpayers of the municipality.

We find no meaningful constitutional distinction in the instant case, thus we need 11slook no further than our decision in City of Alexandria to resolve this matter. Applying the precepts of City of Alexandria to this case, we find the Rice Statutes clearly violate the non-delegation doctrine. The relevant provisions of La. R.S. 3:3534 provide:

A. Levy of assessment.
(1) There is hereby levied an assessment at the rate not to exceed three cents per hundredweight, or the equivalent thereof, of dry rough “paddy” rice produced in this state and a rate not to exceed two and seventy one-hundredths cents per hundredweight, or the equivalent thereof, on rice produced in this state and sold on a “green weight” basis.
(2) The obligation to pay the assessment shall apply to the producer for all rice marketed by him. To facilitate collection, this assessment shall be deducted by each miller or handler from the amount paid the producer at the first point of sale only, whether within or without the state; however, the assessment shall not be imposed unless and until the question of its imposition has been submitted to and been approved by a majority of the rice producers who vote in referendum as provided in Subsection B of this Section.
* * *
B. Referendum.
(1)The levy of assessment as provided in Subsection A of this Section shall not be imposed unless and until the question of its imposition and, subject to the max-ima provided in Subsection A, the amount thereof, has been submitted to and been approved by a majority of the rice producers who vote in a referendum.
(8)If approved, the assessment shall be effective for a period of five crop years. It may be extended for an indefinite period of time, in increments of five years each, by ratification and approval by a majority vote of all the rice producers who vote in referendum to be called and held by the board in the manner set forth hereinabove.
(4) In all such referenda, in order to be eligible to vote, the producer must have produced rice in the crop year immediately preceding the referendum.
G. Refunds.
(1) Any rice producer may request and receive a refund of the amount 114deducted from his share of the proceeds from the sale of his rice provided he makes a written application with the commissioner within thirty days from the date of sale supported by copies of sales slips signed by the producer and provided further that the application is filed before the annual accounting is made and the funds paid to the board.
(2) Provided however, the refund as provided in this Subsection shall not be available if a majority of the rice producers who vote in a referendum to be called and held by the board after January 1, 1992, vote to abolish the refund provisions of this Subsection.
(8) If a majority of the rice producers who vote in such a referendum vote to abolish the refund provisions, such refund provisions shall be null and void and shall thereafter have no effect.
* * *

La. R.S. 3:3544 provides, in relevant part:

A. Levy of assessment.
(1) There is imposed and levied an assessment at the rate not to exceed three cents per hundredweight, or the equivalent thereof, of dry rough “paddy” rice produced in this state.
(3)The obligation to pay the assessment shall apply to the producer for all rice marketed by him. To facilitate collection, this assessment is to be deducted by each miller or handler from the amount paid the producer at the first point of sale only, whether within or without the state; however, the assessment shall not be imposed unless and until the question of its imposition and the amount thereof has been submitted to and been approved by a majority of the rice producers who vote in referendum to be called and held by the board ■within ninety days following the effective date of this Chapter. If the assessment is approved as provided in this Section, the assessment shall become effective July 1,1973.
(9) The assessment imposed by this Subsection shall be effective for a period of five crop years.
(10) Subject to the provisions of Subsection G of this Section, this assessment may be extended for an indefinite period of time in increments of five years each, by ratification and approval of a majority vote of the rice producers who vote in referenda to be called and held by the board in the manner provided in Subsection B of this Section.
|1bB. Referendum. No assessment provided for in this Section shall be imposed unless and until the question of its imposition has been submitted to and has been approved by a majority of the rice producers who vote in a referendum to be called and held by the board. The board shall give notice of the results of the referendum to the rice producers of the state. In order to be eligible to vote in referenda conducted in accordance with this Subsection, each rice producer shall have produced rice in the crop year immediately preceding the crop year in which the referendum is held.
E. Refunds.
(1) Any rice producer may request and receive a refund of the amount deducted from his share of the proceeds from the sale of his rice provided he makes a written application with the commissioner within thirty days from the date of sale supported by copies of weight or settlement sheets by the buyer and provided further that the application is filed before the annual accounting is made and the funds paid to the board.
(2) Provided however, the refund as provided in this Subsection shall not be available if a majority of the rice producers who vote in a referendum to be called and held by the board after January 1, 1992, vote to abolish the refund provisions of this Subsection.
(3) If a majority of the rice producers who vote in such a referendum vote to abolish the refund provisions, such refund provisions shall be null and void and shall thereafter have no effect.

First, we find the Legislature does not have the authority to delegate the question of imposition of the assessment to the rice producers. La. R.S. 3:35S4(B)(1) and La. R.S. 3:3544(A)(3) allow private citizens the right to determine whether the Legislature’s assessment provision will take effect. The vote is not subject to review by the Legislature or by any administrative agency, such as the Rice Boards. The sole decision on whether the assessments will be imposed is made by private persons, the rice producers.

Additionally, we do not agree with defendants’ argument that the statutes merely constitute contingent legislation. While the Legislature can make the | ^operation or application of a statute contingent upon the existence of certain facts and conditions, it cannot condition imposition of the law upon the vote of a private group. As we explained in City of Alexandria, this court has limited the exception to contingent legislation involving approval by referendum to local option laws. We are not inclined to expand application of the exception. The referendums set forth in the Rice Statutes do not constitute local options elections. In particular, the referendums are not limited to a specific locality, but apply state-wide to all rice producers. Thus, the contingency exception does not apply in this case.

The Rice Statutes also violate the non-delegation doctrine by giving a private group the power to decide whether the law governing the refunds will change. La. R.S. 3:3534(G)(2) and La. R.S. 3:3544(E)(2) grant to a majority of the rice producers the power to repeal the Legislature’s grant of a refund. In particular, the use of the term “abolish,” indicates the power to actually repeal legislation. Further, this power is expansive in that it allows the rice producers to permanently repeal this legislation by voiding the Legislature’s refund provisions such that they “thereafter have no effect.”

Finally, the Rice Statutes unconstitutionally delegate legislative power to the rice producers to set the rate of the assessment. La. R.S. 3:3534(B)(1) and La. R.S. 3:3544(A)(3) provide that the assessment shall not be imposed until the “question of its imposition” and “the amount thereof’ has been submitted to and voted on by a majority of the rice producers who vote at the referendum. As with the imposition of the assessment itself, the amount of the assessment is voted on by the rice producers. Because the legislature did not set the amount of the assessment in the statute, it has delegated to the rice producers the power to determine what the law will |i7be. Presumably the Rice Boards have the power to choose the amount of the assessment placed on the ballot, subject to the three-cent maxima. Such a delegation of power to the Rice Boards does not satisfy constitutional requirements.

To determine whether a particular delegation of legislative authority is unconstitutional, we rely on the rule established by this Court in Schwegmann Brothers Giant Super Markets v. McCra-ry, Commissioner of Agriculture.

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 prescribed limits some fact upon which the law by its own terms operates, such regulation is administrative and not legislative in its nature.

This rule requires courts to distinguish between “delegations of purely legislative authority, which necessarily violate the separation of powers, and delegations of ministerial or administrative authority, which do not.” Guided by these principles, this Court has developed a three-part test to ascertain whether a statute unconstitutionally delegates legislative authority. A delegation of authority to an administrative agency is constitutionally valid if the statute: 1) 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 procedural safeguards to protect against abuse of discretion by the agency. This test serves two functions vital to preserving the separation of powers required by the Constitution:

First, it insures that the fundamental policy decisions in our society will be made not by an appointed official but by the body immediately | ^responsible to the people. Second, it prevents judicial review from becoming merely an exercise at large by providing the courts with some measure against which to judge the official action that has been challenged.

Moreover, we have explained the importance and necessity of each part of the test:

Application of the Schwegmann three-prong test ensures the elected members of the Louisiana Legislature retain all legislative power by insisting that they, not their delegates in the executive branch, make the difficult policy choices for which they are accountable to the public through the democratic process. Furthermore, by insisting that the enabling statute prescribe not only the legislative policy to be enforced by the agency but also sufficient standards to guide or “canalize” the agency’s execution of the legislative will, the test ensures the statute delegates only administrative or ministerial authority and guards against delegations of unbridled legislative discretion and the danger of “delegation running riot.” Additionally, because even delegations of administrative or ministerial authority require agencies to exercise some discretion in executing the legislative will, the requirement of adequate procedural safeguards ensures the agency exercises that discretion in accordance with the policy and standards prescribed in the enabling statute and consistent with democratic values served by public participation and judicial review.

Application of the three-prong test set forth in Schwegmann and All Pro Paint compels us to conclude that the Rice Statutes fail to establish a constitutionally valid delegation of power to the Rice Boards to set the amount of the assessments. Examining the first prong of the test, we do find the Rice Statutes contain a sufficient expression of legislative policy. La. R.S. 3:3582 provides: “The purpose of this Chapter is to promote the growth and development of the rice industry in Louisiana by expanded research of rice, thereby promoting the general welfare of the people of this state.” Similarly, La. R.S. 3:3542 provides: “The purpose of this Chapter is to promote the growth and development of the rice industry in Louisiana by promotion of rice, thereby promoting the general welfare of the people of this state.” There is no question that the Legislature clearly expressed the policy behind the Rice Statutes. Thus, we find the Act sets forth a defined statement of legislative policy sufficient to |iasatisfy the first prong of the test.

However, the Rice Statutes do not meet prongs two and three of the test. Other than setting a maximum assessment of three cents per hundredweight, the Rice Statutes contain no standards and provide no guidelines for the Rice Boards to consider in setting the amount of the assessment. Moreover, the Legislature did not retain any discretion to review, approve, disapprove or modify the assessment decision reached by the Board. This is not a case where the Legislature has merely delegated ministerial authority to the Rice Boards to determine the amount of the assessment by providing a blueprint for action or supplying factors or formulas. Thus, the Rice Statutes fail to provide sufficient safeguards or standards by which the amount of the assessment can be measured.

We have recognized that to successfully challenge a legislative act as unconstitutional on its face, the challenger must establish that no set of circumstances exists under which the Act would be valid. Here, because we find the text and structure of the Rice Statutes themselves im-permissibly delegate legislative authority to private persons and to the Rice Boards, there are necessarily no circumstances under which application of the Rice Statutes can operate constitutionally.

CONCLUSION

In sum, we hold La. R.S. 3:3534 and La. R.S. 3:3544 are facially unconstitutional. The Rice Statutes delegate the power to impose the assessment, determine the amount of the assessment, and repeal the refund provisions, entirely to the rice producers. And, to the extent the power to set the amount of the assessment is delegated to the Rice Boards, the Rice Statutes do not contain sufficient standards 12nand safeguards to satisfy the test set forth in Schwegmann and All Pro Paint. The Legislature improperly transferred its assessment power to a particular group of private voters who can impose, maintain or revoke the assessment and right to refunds through private elections. As we stated in City of Alexandria, such action is “legislative delegation in its most obnoxious form.” Thus, we affirm and amend the district court’s judgment to declare La. R.S. 3:3534 and La. R.S. 3:3544 unconstitutional in their entirety.

DECREE

AFFIRMED AS AMENDED.

      . La. Const, art. V, § 5(D) provides, in pertinent part: a case shall be appealable to the supreme court if (1) a law or ordinance has been declared unconstitutional.

      . La. R.S. 3:3532, 3542.

      . "Rice Statutes” refer to La. R.S. 3:3534 and La. R.S. 3:3544 for purposes of this opinion.

      .La. R.S. 3:3534(A)(1), 3544(A)(1).

      . La. R.S. 3:3534(A)(2), 3544(A)(3).

      . La. R.S. 3:3534(B)(1), 3544(B).

      . La. R.S. 3:3534(B)(4), 3544(B).

      . La. R.S. 3:3534(B)(3), 3544(A)(9), (10).

      . La. R.S. 3:3534(H), 3544(F).

      . La. R.S. 3:3534(G)(1), 3544(E)(1).

      . La. R.S. 3:3534(0(2), 3544(E)(2).

      . Plaintiffs’ "as applied” challenge is not at issue in this appeal.

      . La. Const, art. Ill, § 1 provides in pertinent part:
      Section 1. (A) Legislative Power of State. The legislative power of the state is vested in a legislature, consisting of a Senate and a House of Representatives.

      . La. 3:3534(G)(2) and (3) provide in pertinent part:
      (2) Provided however, the refund as provided in this Subsection shall not be available if a majority of the rice producers who vote in a referendum to be called and held by the board after January 1, 1992, vote to abolish the refund provisions of this Subsection.
      (3) If a majority of the rice producers who vote in such a referendum vote to abolish the refund provisions, such refund provisions shall be null and void and shall thereafter have no effect.

      . La. R.S. 3:3544(E)(2), and (3) provide in pertinent part:
      (2) Provided however, the refund as provided in this Subsection shall not be available if a majority of the rice producers who vote in a referendum to be called and held by the board after January 1, 1992, vote to abolish the refund provisions of this Subsection.
      (3) If a majority of the rice producers who vote in such a referendum vote to abolish the refund provisions, such refund provisions shall be null and void and shall thereafter have no effect.

      . Louisiana Municipal Association v. State, 04-0227 (La.1/19/05), 893 So.2d 809, 842.

      . Id. at 843 (citing Womack v. Louisiana Commission on Governmental Ethics, 250 La. 833, 841, 199 So.2d 891, 894 (La.1967)).

      . Board of Commissioners of North Lafourche Conservation, Levee and Drainage District v. Board of Commissioners of Atchafalaya Basin Levee District, 95-1353 (La.1/16/96), 666 So.2d 636, 639.

      . Wooley v. State Farm Fire and Cas. Ins. Co., 04-882 (La.1/19/05), 893 So.2d 746, 762.

      . World Trade Ctr. Taxing Dist. v. All Taxpayers, Prop. Owners, 05-374 (La.6/29/05), 908 So.2d 623, 632.

      . Id.

        . Id.

      . La. Const, art. II, § 1.

      . La. Const, art. II, § 2.

      . La. Const. art. III, § 1; La. Const, art. II, § 1; State v. Alfonso, 99-1546 (La.11/23/99), 753 So.2d 156, 160.

      . See, e.g., State v. Dick, 06-2223 (La.1/26/07), 951 So.2d 124, 133.

      . State v. Miller, 03-0206 (La.10/21/03), 857 So.2d 423, 427.

      . Id. at 427 (quoting City of Alexandria v. Alexandria Fire Fighters Assn., 220 La. 754, 57 So.2d 673 (1952)).

      . See City of Alexandria, 57 So.2d at 674; State v. Guidry, 142 La. 422, 76 So. 843 (1917).

      . State v. Alfonso, 99-1546 (La.11/23/99), 753 So.2d 156, 160.

      . City of Alexandria, 57 So.2d at 674.

      . 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160 (1937).

      . 298 U.S. at 311, 56 S.Ct. 855.

      . 306 U.S. 1, 59 S.Ct. 379, 83 L.Ed. 441 (1939).

      . 306 U.S. at 15, 59 S.Ct. 379.

      . Id.

      . Id. at 15-16, 59 S.Ct. 379 (internal citations omitted).

      . City of Alexandria, 57 So.2d at 674.

      . Id. at 674.

        .Id.

      . id.

      . Id. at 675.

      . Id. (internal citations removed).

      . 176 La. 837, 147 So. 8 (La.1933).

       147 So. at 10.

      . City of Alexandria, 57 So.2d at 676-77.

      . Id.

      . Id. at 675-76.

      . La. R.S. 3:3534(G)(3), 3544(E)(3).

      . La. R.S. 3:3534(B)(1), 3544(A)(3) (emphasis added).

      . 237 La. 768, 788, 112 So.2d 606, 613 (1959).

      . State v. All Pro Paint & Body Shop, Inc., 93-1316 (La.7/5/94), 639 So.2d 707, 711.

      . Id. at 712.

      . Id.; State v. Barthelemy, 545 So.2d 531, 534 (La.1989); Adams v. State, 458 So.2d 1295, 1298 (La.1984); State v. Union Tank Car, 439 So.2d 377, 381 (La.1983).

      . All Pro Paint, 639 So.2d at 712.

      . Id. at 712-13.

      . See, e.g., Louisiana Municipal Association v. State, 04-0227 (La. 1/19/05), 893 So.2d 809, 845-46.

      . State v. Powdrill, 95-2307 (La.11/25/96), 684 So.2d 350, 357; see also, City of New Orleans v. Louisiana Assessors’ Retirement and

        Relief Fund, 05-2548 (La.10/1/07), 986 So.2d 1, 19.


author: PER CURIAM.

text:
    LOUISIANA OFFICE OF RISK MANAGEMENT and Louisiana Department of Transportation & Development v. Patrick RICHARD.
    No. 2013-C-0890.
    Supreme Court of Louisiana.
    Oct. 15, 2013.

      Department of Justice, State of Louisiana, Sylvia M. Fordice, Assistant Attorney General, for Applicant.
    Michael Benny Miller Esq., Crowley, LA, for Respondent.
   PER CURIAM.

Bin this workers’ compensation matter, we are called upon to decide whether the court of appeal erred in finding the employer is estopped from claiming an offset of workers’ compensation benefits. For the reasons that follow, we conclude the court of appeal incorrectly applied the law. Accordingly, we reinstate the judgment of the Office of Workers’ Compensation granting the employer an offset.

FACTS AND PROCEDURAL HISTORY

On September 25, 2005, Patrick Richard sustained a work-related injury during the course of his employment with the State of Louisiana, Department of Transportation and Development (“DOTD”). After Mr. Richard’s injury, DOTD began paying him workers’ compensation benefits.

Mr. Richard took disability retirement on April 20, 2007. Upon retiring, Mr. Richard spoke with Lynn Dodge, a DOTD employee, about the effect his receipt of workers’ compensation benefits would have on his disability retirement benefits. |2In his subsequent testimony, Mr. Richard described his conversation with Ms. Dodge as follows:

Q. Okay. Did you talk to her about your retirement?
A. Yes, sir. I asked her, I said, “will this workman’s comp affect my retirement?” She said, “Nope. That’s two different departments.”

Thereafter, Mr. Richard began simultaneously receiving disability retirement benefits through the Louisiana State Employees Retirement System (“LASERS”), and workers’ compensation benefits through DOTD. In August 2007, DOTD informed Mr. Richard it had been overpaying him for workers’ compensation benefits.

On January 31, 2011, DOTD filed a disputed claim for compensation, seeking an offset pursuant to La. R.S. 23:1225(C)(1). In response, Mr. Richard filed an exception of prescription, arguing DOTD’s claim for reimbursement was subject to a three-year prescriptive period.

The matter proceeded to a trial before the Office of Workers’ Compensation (“OWC”). The OWC denied Mr. Richard’s exception of prescription. The OWC further held DOTD is entitled to an offset of $224.05 per week as of April 21, 2007, until Mr. Richard converts to regular retirement benefits at age 60.

Mr. Richard appealed. The court of appeal affirmed in part and reversed in part. State, Office of Risk Management v. Richard, 12-1247 (La.App. 3 Cir. 3/20/13), 112 So.3d 936. The court of appeal affirmed the judgment of the OWC denying Mr. Richard’s exception of prescription. However, the court found the OWC erred in holding DOTD was entitled to an offset of workers’ compensation benefits. In reaching this conclusion, the court explained, “[cjonsidering the assurances that Richard received from Dodge, along with the State’s continuing to pay him both |sworkers’ compensation benefits and disability retirement benefits for over three years, while acknowledging that it might be entitled to an offset, we conclude that the State is estopped from claiming that it is owed an offset under La. R.S. 23:1225.” 12-1247 at p. 7, 112 So.3d at 941. Accordingly, the court of appeal reversed the judgment of the OWC on this point, and held DOTD was estopped from claiming it overpaid benefits to Mr. Richard.

Upon DOTD’s application, we granted certiorari to review the correctness of that decision. State v. Richard, 13-C-0890 (La.6/21/13), 118 So.3d 404. The sole issue presented for our consideration is whether DOTD is entitled to an offset of workers’ compensation benefits under La. R.S. 23:1225.

DISCUSSION

The statutory authority providing for an offset of workers’ compensation benefits is set forth in La. R.S. 23:1225(0(1), which provides in pertinent part:

C.(l) If an employee receives remuneration from:
(c) Benefits under disability benefit plans in the proportion funded by an employer.
(d) Any other workers’ compensation benefits, then compensation benefits under this Chapter shall be reduced, unless there is an agreement to the contrary between the employee and the employer liable for payment of the workers’ compensation benefit, so that the aggregate remuneration from Sub-paragraphs (a) through (d) of this Paragraph shall not exceed sixty-six and two-thirds percent of his average weekly wage, [emphasis added]

An employer seeking credit for benefits covered by the statute has the burden of proving both entitlement to and the amount of the credit. Jones v. General Motors Co., 03-1766, p. 12 (La.4/30/04), 871 So.2d 1109, 1117; Matthews v. City of Alexandria, 619 So.2d 57, 60 (La.1998). In the instant case, DOTD produced undisputed evidence that Mr. Richard was receiving both disability retirement and workers’ compensation benefits. Therefore, we find DOTD satisfied its burden of proving it is entitled to the statutory offset.

Nonetheless, Mr. Richard argues La. R.S. 23:1225(C)(l)(d) contains an exception providing the employer is not entitled to the offset, if “there is an agreement to the contrary between the employee and the employer liable for payment of the workers’ compensation benefit....” Mr. Richard submits he relied on Ms. Dodge’s statement that his disability retirement would not affect his workers’ compensation benefits.

In accepting Mr. Richard’s argument, the court of appeal acknowledged there was no jurisprudence directly on point. Nonetheless, the court of appeal analogized this case to Fontenot v. Houston General Insurance Co., 467 So.2d 77 (La.App. 3 Cir.1985), wherein the plaintiff was injured in the course and scope of his employment, and subsequently received medical payments from his employers’ workers’ compensation insurer. After the accident, a safety inspector for the employer assured the plaintiff that all he needed to do to maintain his right to medical payments was to go to the doctor at least once a year. As a result, the plaintiff continued to visit his doctor every six months for several years, until he received a bill from his doctor informing him the workers’ compensation insurer failed to pay his medical bills for several years. The plaintiff then made an inquiry with his employer, who informed him his claim for medical payments had expired. As a result, the plaintiff filed a disputed claim for compensation. The employer filed an exception of prescription, which the OWC denied. The court of appeal affirmed, ^explaining, “[t]here is no doubt that plaintiff was lulled into complacency by the representations made by the State’s representative.” Fontenot, 467 So.2d at 80.

We find the court of appeal’s reliance on Fontenot is misplaced. Without passing on the correctness of the Fontenot holding, we observe that decision was based on facts which arose prior to the codification of the detrimental reliance doctrine in La. Civ.Code art. 1967. That article now provides:

Cause is the reason why a party obligates himself.
A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisee’s reliance on the promise. Reliance on a gratuitous promise made without required formalities is not reasonable, [emphasis added]

To establish detrimental reliance, a party must prove three elements by a preponderance of the evidence: (1) a representation by conduct or word; (2) justifiable reliance; and (3) a change in position to one’s detriment because of the reliance. Suire v. Lafayette City-Parish Consolidated Government, 04-1459 at p. 31 (La.4/12/05), 907 So.2d 37, 59. The doctrine of detrimental reliance is designed to prevent injustice by barring a party from taking a position contrary to his prior acts, admissions, representations, or silence. Id. However, it is difficult to recover under the theory of detrimental reliance, because estoppel is not favored in Louisiana law. Doss v. Cuevas, 07-1803 at p. 4 (La.App. 1 Cir. 3/26/08), 985 So.2d 740, 743; May v. Harris Management Corp., 04-2657 at p. 6 (La.App. 1 Cir. 12/22/05), 928 So.2d 140, 145.

We do not find Mr. Richard established that his reliance on any purported representation by Ms. Dodge was reasonable. Mr. Richard’s testimony reveals he did 16not know Ms. Dodge’s title, nor did he know what she actually did at DOTD. Additionally, Mr. Richard admitted he did not perform any further investigation, such as speaking with a LASERS representative, or consulting the rules for disability retirement.

Moreover, nothing in Ms. Dodge’s conversation with Mr. Richard should have caused him to believe his workers’ compensation benefits would not be reduced as a result of his decision to take disability retirement. Rather, Mr. Richard asked her “will this workman’s comp affect my retirement” [emphasis added]. Ms. Dodge’s negative response to this question would not cause a reasonable person to believe his workers’ compensation payments would not be reduced.

Considering the facts of this case, we find the court of appeal erred in holding DOTD was estopped from claiming that it is owed an offset under La. R.S. 23:1225. Likewise, we find no evidence of any agreement for purposes of La. R.S. 23:1225(C)(l)(d) which would prohibit DOTD from reducing Mr. Richard’s workers’ compensation benefits. See Jones v. General Motors Corp., 03-1766, p. 12 (La.4/30/04), 871 So.2d 1109, 1118 (holding that contracts between employers and employees concerning wage-loss benefits are not prohibited; however, an agreement which waives or alters statutorily established rights must be clear and unambiguous).

Finally, Mr. Richard argues that even if the court of appeal erred in finding DOTD is not estopped from raising the offset issue, the court of appeal still reached the correct result in dismissing the offset claim, because DOTD failed to prove it was entitled to an offset. Mr. Richard contends La. R.S. 23:1225(0(1) and (C)(3) should |7be read together, so as to require any reduction of workers’ compensation benefits under paragraph (1) be made pursuant to plan provisions, and subject to a plan providing for a reduction of disability benefits. He claims DOTD failed to introduce the plan provisions of its retirement policy, and therefore failed to prove it was entitled to an offset.

We see no merit to Mr. Richard’s argument. La. R.S. 23:1225(0(3) applies to situations where there is a “plan providing for reduction of disability benefits.” DOTD does not seek a reduction of disability retirement benefits, but instead seeks a reduction of workers’ compensation benefits. DOTD further produced evidence supporting the offset in the form of testimony from its actuary, Charles G. Hall. The OWC used this evidence to determine the employer-funded portion of Mr. Richard’s monthly disability retirement benefit, and used this number to compute the weekly offset. The OWC’s findings are supported by the record, and are not clearly wrong.

In summary, we see no manifest error in the OWC’s conclusion that DOTD was entitled to an offset, nor do we see any error in the OWC’s calculation of the offset. Accordingly, we will reinstate the judgment of the OWC.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed insofar as it holds the State of Louisiana, Department of Transportation and Development is not entitled to offset pursuant to La. R.S. 23:1225(0(1). The judgment of the Office of Workers’ Compensation is hereby reinstated and affirmed.

      . Mr. Richard, however, agreed to forego receiving these benefits, and used his accrued vacation and sick leave in exchange for DOTD's continued payment of his regular salary.

      . Mr. Richard did not seek review of the judgment of the court of appeal affirming the denial of his exception of prescription. Accordingly, the issue of prescription is not before this court, and will not be discussed in this opinion.

      . We note Mr. Richard did not file an application for writs in this court, and is therefore prevented from seeking affirmative relief in this court. However, pursuant to La.Code Civ. P. art. 2133(B), he "may assert, in support of the judgment, any argument supported by the record, although he has not appealed, answered the appeal, or applied for supervisory writs.” Therefore, Mr. Richard is entitled to argue the court of appeal reached the correct result in reversing the offset, although based on different grounds than those cited by the court. See Logan v. Louisiana Dock Co., Inc., 541 So.2d 182 (La.1989); Roger v. Estate of Moulton, 513 So.2d 1126 (La.1987) (on rehearing).