Edward Wisner loved New Orleans. A real estate developer, banker, newspaper editor, and philanthropist, Wisner formed a trust in August 1914 to donate over 50,000 acres to the city he loved. Today, the value of the trust is estimated to be over $100 million.
In establishing this trust, Wisner required the City of New Orleans to use funds generated from its use of the land “for the beautification of New Orleans and for the education, health and recreation of the city residents.” As the trust's principal beneficiary, the City held the trust corpus and would receive the bulk of the trust's revenue. Wisner named three income beneficiaries: Tulane University, Charity Hospital, and the Salvation Army. Wisner named the Mayor of New Orleans as trustee. Notably, at the end of the trust's one-hundred-year term, Wisner expressly granted all of the trust's immovable property to the City of New Orleans.
A year after creating the trust, Wisner died. His widow and two daughters--the “Wisner Ladies”--then sued to annul the trust. They later settled with the City and other beneficiaries by reaching three important compromises: (1) “the Wisner Ladies ratified and acknowledged the validity” of Wisner's original trust; (2) the four original beneficiaries recognized the Wisner Ladies as additional income beneficiaries, receiving a 40% interest in the trust revenues; and (3) the New Orleans City Council would create the Edward Wisner Donation Advisory Committee to represent the trust beneficiaries and control all trust-related matters. The Advisory Board would consist of five members: the Mayor as chairperson and representative of the City of New Orleans (now receiving 34% of trust revenue), and a representative of each of the four income beneficiaries: the Wisner Ladies, Tulane University, Charity Hospital (now with a 12% interest each), and the Salvation Army (now with a 1.2% interest).
Over eighty years later, the Trust was rapidly approaching the end of its one-hundred-year term. Then-Mayor Mitch Landrieu filed a summary proceeding to clarify the terms and future of the Wisner trust. On appeal from the trial court's decision, the Louisiana Fourth Circuit Court of Appeal reached two conclusions: first, the Wisner trust was not perpetual and would expire in August 2014 at the end of its original one-hundred-year term, and second, the City Council's Advisory Committee was a “public body,” and thus, all Advisory Committee meetings should be open to the public. After this decision, Mayor Landrieu, as trustee, was obligated to deliver the trust corpus to the city. For reasons largely unknown, this did not happen.
Fast forward to 2020. Six years after the trust expired and unbeknownst to the City Council, New Orleans Mayor LaToya Cantrell, in her role as trustee, entered into an agreement with the other beneficiaries to extend the Wisner trust forever. The 2020 Ratification Agreement: (1) made all beneficiaries principal beneficiaries, thereby denying the City of New Orleans the trust corpus; (2) extended the trust in perpetuity; and (3) shifted management from the public Advisory Committee to a private management board, which was not bound by public records, “open meeting” laws, or Council oversight.
The Council filed suit, seeking a temporary restraining order and ultimate injunction, asserting “that the 2020 Ratification Agreement was an illegal disposition of public property, an impermissible modification of the trust, and an absolute nullity.” The Council wanted to prevent existing beneficiaries from further depleting the trust and to stop the Mayor from distributing the trust's proceeds without Council approval. In response, the newly designated private management board filed a dilatory exception of lack of procedural capacity or, alternatively, a peremptory exception of no right of action.
The Wisner Family Interest petitioned to intervene. The Orleans Parish Civil District Court denied the private management board's exceptions and granted the Council a preliminary injunction. The board and the Wisner Family Interest appealed to the Louisiana Fourth Circuit Court of Appeal. Dismissing established custom of treating New Orleans's City Council as a separate juridical entity, the Louisiana Fourth Circuit reversed the trial court's decision, holding that the Council was not a juridical person with the capacity to sue and be sued.
The Council appealed its case to the Louisiana Supreme Court, which reversed the Fourth Circuit's judgment. In a novel decision, the Louisiana Supreme Court held that New Orleans's Home Rule Charter and custom establish that New Orleans's City Council has the procedural capacity to institute lawsuits in some instances. The court's decision is notable for two reasons. First, the court correctly adhered to the Civil Code's rules of statutory interpretation, leading to a consideration of legislative purpose--a welcome rejection of the Fourth Circuit's textualist approach. Second, the court applied custom to support its legislative interpretation, finding that the Council's long history of appearing as a party in litigation reinforced the court's determination that the Council possessed capacity in the noted case. The decision is a profound development in Louisiana jurisprudence because it marks the first time in nearly a century that a court has applied custom with the force of law.
This Note examines the Louisiana Supreme Court's method of statutory interpretation and its decision to resurrect custom, a primary source of civilian law long believed to be defunct. Part II analyzes critical legislation, the history and purpose of custom, and case law relevant to the court's reasoning. Part III explains the Supreme Court's use of such authority in the noted case. Part IV analyzes the logic behind the Supreme Court's decision with the resulting policy implications. Part V briefly concludes.
About the Author
Megan E. Koch. J.D. Candidate 2025, Tulane University Law School; B.A. 2008, University of Missouri-Columbia.
Citation
98 Tul. L. Rev. 755