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April 2014

A Big Thank You

Over the past three months, 26 second and third year law students in the inaugural Funeral and Cemetery Law Class at Wake Forest School of Law have written a total of 130 posts at the Funeral Law Blog.  They have shed light on timely news stories, asked complex and fascinating questions, and generally informed and enlightened the readers of this blog.  Hopefully they learned a few things too.

Thank you!

Tanya Marsh


Paying Your (Dis)Respects: Memorials that Offend

Free your body and soul,

Unfold your powerful wings,

Climb up the highest mountain . . .

It’s the first three lines of a beautiful poem honoring the memory of a loved one.  What could be offensive about that?

Actually, it’s the first three letters of a four-letter word rarely uttered in loving memory—much less permanently inscribed on a tombstone. 

But that’s how the inscription of John Laird McCaffery’s tombstone begins.  According to the engraver (who has preferred to remain anonymous), “[t]his guy's ex-wife and mistress came in together and ordered the stone. They said the message represented him.”  The inscription continues:

Kick your feet up in the air,

You may now live forever,

Or return to this Earth,

Unless you feel good where you are.

The engraver didn’t notice the censor-worthy sentiment until after it was already inscribed; “I'm looking at it and I’m like, ‘Wow,’” he said. 

That’s been the general reaction since the stone was first place in Montreal’s Cimetière Notre-Dame-des-Neiges in 1995.  Most cemeteries—including Cimetière Notre-Dame-des-Neiges—have rules prohibiting offensive materials.  While the profane poetry on McCaffery’s tombstone would be “offensive” almost anywhere, what some cemeteries have recently deemed offensive seem hard to defend.

As Professor Tanya Marsh wrote in October, a Cincinnati cemetery ordered the removal of two SpongeBob Squarepants memorials from the grave of a young veteran. 

In Virginia, Salem United Methodist Church deemed a tombstone within its cemetery to be offensive because it bore a picture of the deceased “playing cards and drinking alcohol with a friend.”  The church ordered that the picture, or the entire stone, be removed. 

A Colorado cemetery refused to allow a tombstone bearing an Ichthys symbol around the word “Jesus.”  According to director of the city-owned cemetery, the Ichthys symbol—commonly known as the “Jesus fish”—was permitted, but the word “‘Jesus’ was offensive to others who would come to the cemetery.”  Eventually, the cemetery permitted the tombstone, Jesus, fish, and all. 

A Massachusetts cemetery refused to approve a headstone design because it was inscribed with lyrics to song written by the decedent, which included profanity.  The rapper’s other memorial, a “1” composed of rocks and mulch on his plot in honor of his nickname “Uno,” was also ordered to be removed. 

Meanwhile, McCaffery’s expletive epitaph still stands after almost 20 years of offending (and, admittedly, amusing) most who see it.  While these ladies’ foul-mouthed farewell is set in stone, the issue of offensive materials in cemeteries remains.  

Catherine Hammack

FTC: 25% of Funeral Homes Inspected in 2013 not in Compliance with Funeral Rule

One of the key protections for funeral consumers is the Federal Trade Commission’s Funeral Rule. The rule aims to protect consumers by requiring funeral homes to provide itemized price lists. The rule also prohibits funeral homes from requiring the purchase of caskets or other items as a condition for receiving other funeral services. In theory, this allows consumers to compare prices and ensure that an already traumatic experience is not complicated by feeling ripped off.

However, compliance with the Funeral Rule is less than perfect. On March 11, the FTC announced the results of its annual funeral home inspections. In 2013, investigators visited 122 funeral homes in nine states. Inspectors reported that 30 of those funeral homes failed to provide pricing information to consumers as required. The worst compliance rate was found in Monroe, Louisiana, where 8 of 17 funeral homes inspected did not make the price list disclosure as required.

The results for other markets are as follows: 

  • In Palm Springs, California, 1 of 8 funeral homes inspected failed to make a price list disclosure as required;
  • In Southern Connecticut and Northern New Jersey, 2 of 12 funeral homes inspected failed to make a price list disclosure as required;
  • In Monroe, Louisiana, 8 of 17 funeral homes inspected failed to make a price list disclosure as required.
  • In Baltimore, Maryland, 2 of 19 funeral homes inspected failed to make a price list disclosure as required.
  • In Dayton, Ohio, 5 of 15 funeral homes inspected failed to make a price list disclosure as required.
  • In Portland, Oregon, 2 of 14 funeral homes inspected failed to make a price list disclosure as required.
  • In Amarillo, Texas, 6 of 19 funeral homes inspected failed to make a price list disclosure as required.
  • In Milwaukee, Wisconsin, 4 of 18 funeral homes inspected failed to make a price list disclosure as required.

Funeral homes face penalties of up to $16,000 per violation. However, rather than levying fines, the FTC allows most funeral homes to enter the Funeral Rule Offenders Program (FROP) which is operated by the National Funeral Directors Association. The program aims to increase compliance through training. All but two of the non-compliant funeral homes entered this program. However, the FTC does not release the names of the funeral homes involved. 

Ryan Arens

Moving Father's Grave to Build a Sewer: Taking Cemetery Land by Eminent Domain

They're moving father's grave to build a sewer

They're moving it regardless of expense

They're moving his remains to put down nine-inch drains

To irrigate some posh bloke's residence

These lyrics to an old English song humorously illustrate the issue of taking cemetery land by eminent domain for other uses. Eminent domain has deep roots in American common law, and was commonly practiced during the pre-revolution, colonial era with little regulation, and often no compensation given to private land owners. The Fifth Amendment imposed some limits on the practice, but the use of eminent domain by state and local governments has expanded in frequency and scope over time, including a marked increase in its use for private projects in recent years. To illustrate, one study found that between 1998 and 2002 there were 10,000 actual or threatened condemnations. 

With open space becoming scarcer in developed areas, it was only a matter of time before state entities began using eminent domain to take cemetery land. The very idea that remains interred in a cemetery might be disturbed at some future point to make way for the construction of a school, airport runway, or a freeway seems at odds with the ingrained American notion that the deceased are to rest in peace for perpetuity in their grave. Yet this is exactly what happens. 

State law varies in the protections and process by which cemeteries are protected from condemnation. In Florida, state law specifies that cemeteries may only be taken for specific uses: “road system, transportation corridor, or rights-of-way purposes.” This comes with a major caveat-- if the taking entity holds a public hearing where it is determined that there is no reasonable alternative to condemnation of the cemetery property for the project, then condemnation is permitted. 

In Texas, cemetery property is exempt from taxation and seizure by eminent domain, and it may not be seized nor sold by creditors of the individual owners of the cemetery. The only way cemetery property may be condemned is if the land’s legal designation as a cemetery is removed by order and decree of district court, or directors of cemetery association or two thirds of owners of burial plots in cemetery consent to the condemnation.  Texas state law empowers counties to exercise the right of eminent domain to condemn and acquire land for public use. This right of eminent domain applies to all public or private land, except, the statute specifically states that counties’ powers of eminent domain do not extend to “land used for cemetery purposes.” 

While state statutes do exist to protect cemeteries from being condemned via eminent domain, these are not always enough to halt development when the powers in favor are dead-set on it. In 1960, a California district court of appeal held that state law prohibited the taking of cemetery land for the development of an interstate. In response, the California Department of Transportation sought federal muscle. At the department's behest, the feds then filed a successful condemnation action in federal court, under the theory that it was a federal taking for a state project that enjoyed federal funding. The cemetery sued the CA state officials to enjoin them from accepting title from the feds, but the CA Supreme Court ruled against them. So, at least in California, state law can be ignored provided the project for which the cemetery land is taken is funded, at least in part, with federal dollars.

Dave Brennan

Mandatory Grave Care


Last year, the legislature of Maine passed a law, LD 274, which required towns to maintain the graves, monuments, markers, and headstones of all veterans in public cemeteries and ancient burying grounds, whether they are publicly or privately owned.  Under LD 274, towns also must trim weeds, brush, and grass around the graves in ancient burying grounds in conformance with several strict maintenance standards.  These standards include:

 A.  Regrading the grave site to make it level when the grave site has sunk 3 or more inches compared to the surrounding ground;

B.  Maintaining the proper height and orientation, both vertical and horizontal, of the headstone, monument or marker;

C.  Ensuring that inscriptions on the headstone, monument or marker are visible and legible;

D.  Ensuring that the average height of grass at the grave site is between 1.5 to 2.5 inches but no more than 3 inches;

E.  Keeping a flat grave marker free of grass and debris; and

F.  Keeping the burial place free of fallen trees, branches, vines and weeds.

Prior to LD 274, towns were still responsible for town-owned cemeteries and all wartime veterans’ graves. 

Unsurprisingly, not everyone in Maine is thrilled with the new law.  State Senator Chris Johnson said that LD 274 unfairly and suddenly imposed a new mandate on local communities with no guidelines and no funding.  “Waldoboro had 68 cemeteries and Nobleboro had 80 that met the definition,” Johnson said. “Some of them out in the woods, of various sizes and in all sorts of states of repair. The towns were faced with the new law after their budgets were in place and they were grappling with how to deal with it.” 

During the current legislative session Johnson proposed amendment LD 1662 to LD 274, which would keep the mandate to care for the graves, but would give the local communities more control over the work involved, standards of care, and decision-making.  As of now, LD 1662 has strong support from both sides of the aisle and should give local communities in Maine some much needed relief. 

This story was originally reported on

Chris Wasson

Kenyon College Creating Green Cemetery

Philander Chase Corporation, a conservation land trust connected to Kenyon College of Gambier, Ohio, has announced that it is planning to establish a “green cemetery” on a piece of land that it recently acquired.  Green cemeteries are cemeteries that conduct burials in a manner that minimizes negative environmental impacts and promotes ecological health, and a conservation land trust is a non-profit organization that maintains real property to preserve its ecology, resources, or landmarks on the property.  

The Philander Chase Corporation was created in 2000 to preserve the beauty of the rural land surrounding Kenyon College and to prevent unwanted development.  The land purchased by the Philander Chase Corporation for the green cemetery is currently an 18-hole golf course, but the course will be transformed into a 9-hole golf course so that the remaining portion of the course can become green cemetery.  One of the Philander Chase Corporation’s board members, Stephen Christy, is also a board member of the Green Burial Council, a non-profit organization that encourages and creates guidelines for green burials.  He helped push for the creation of the cemetery.  Philander Chase Corporation anticipates creating between 2,000 to 4,000 burial sites on the new land.  Each plot will cost $4,000 (the price includes a donation that will be used for long-term conservation efforts in the cemetery).

With this latest purchase, the Philander Chase Corporation now holds easements on nearly 5,000 acres of land in the region surrounding Kenyon College’s campus.

Sean Radler

The Unlicensed Practice of Cremation, Plus A Crime of Larceny

As an ex-funeral director at O'Donnell & Mulry Funeral Home, Joseph O'Donnell, is no stranger to the funeral service practice. With several years of service within the funeral industry at O'Donnell & Mulry, doing business in Dorchester, MA,  former clients have described him as at best "consoling and personable." Ironically, the once widely respected practitioner, was investigated by Team 5 of the WCBV News station and the Commonwealth of Massachusetts recently due to his engagement in the unauthorized practice of cremation and other questionable funeral services provided. The investigation revealed O'Donnell handled several remains to cremate without a license from the state for several years. It is believed that O'Donnell failed to renew his license when it lapsed. 

Eileen Collins, a trusting customer of the O'Donnell & Mulry Funeral Home stated, "[l]ife and death are two major important things and there shouldn't be short cuts. I just can't get a deep breath over it, you know?"  Even more disturbing is the fact that several other clients have come forward contending they pre-paid O'Donnell for funeral services, but was shammed by the former director when he conjointly went out of business. After several weeks in hideaway, O'Donnell was arrested this past Friday. He is charged with two counts of larceny. 

Sadly, in addition to dealing with the claims against O'Donnell, the families that reported his behavior and the funeral home, now have to the face the possibility that the cremated remains of their loved ones may not be legal. It also seems questionable whether the remains cremated by O'Donnell for the families are actually the remains of the families' loved ones. No one (including members of the State Board and State Medical Examiners Office) seems to know why there was such oversight in checking the status of O'Donnell's license after it expired. However, one thing is certain: several steps should be taken by the relevant state agencies to reform current policies in place so that these issues do not recur in the future. 

Ashley White

Fraternal Organization Symbology in Cemeteries

Many cemeteries are filled with symbolic gravestones. The majority of the cemetery architectural motifs in the United States are from the following categories: 1) ancient pagan architecture; 2) Egyptian architecture; 3) Classical architecture; 4) Gothic architecture; 5) late nineteenth and early twentieth century architecture; and 6) “[u]niquely funerary architecture.” Also, many of the symbols are from secret societies and fraternal organizations. For example, a member of Woodmen of the World may have this gravestone:


A member of the Freemasons may have this gravestone:


A member of the Order of Odd Fellows may have this gravestone:

Odd Fellow

A member of the Benevolent Protective Order of Elks may have this gravestone:


It is clear that membership in a fraternal organization is very important, and many of these organizations conduct graveside ceremonies for their fallen fraternal brothers or sisters. For Freemasons, most of their ceremonies are held privately except for the laying of cornerstones, the open installation of officers, the periodic public education program, and, their most common public ceremony, the Masonic Funeral Service (depicted below).


The Order of Odd Fellows was founded with the following principles: “to visit the sick, relieve the distressed, bury the dead and educate the orphan.” The Order purchases cemetery plots and owns and maintains entire cemeteries so that its members may be buried near each other. Even though fraternal organization membership is in decline, symbolic gravestones will forever be a reminder of how prominent these organizations were in our nation’s past.

Brandon Heffinger 

Using Drones to Prevent Looting of Ancient Cemeteries

In parts of the world that are rich in archaeological heritage - such as Egypt, the Levant, and the Middle East - grave robbing is a serious and escalating problem.  This holds true in Jordan, where the Jordan River Valley and eastern shore of the Dead Sea are home to some of the world's largest ancient cemeteries.

Modern technology has recently been deployed to protect these ancient graves.  An archaeologist from DePaul University, Professor Morag Kersel, is using unmanned aerial vehicles (UAVs, more commonly known as "drones") to map looted graves at the site of Fifa, a Bronze Age necropolis sometimes associated with the ruined biblical cities of Sodom and Gomorrah.  The 10,000 tombs in this region - which date to around 3000-1000 B.C -  have been by targeted by looters for centuries.  The looters dig small holes through the tombs, turning up valuable artifacts and destroying human remains in the process.  

For now, the goal of the five-year project is mainly to map the devastation at Fifa.  Basically, Professor Kersel hopes to track the history of illegal looting and determine which areas of the site were looted during which periods.  This will give archaeologists a better idea of what the site would have looked like when it was intact.

But the data gathered by Professor Kersel during the drone survey may also have a legal application.  In an earlier post, I mentioned the difficulties inherent in enforcing grave robbing statutes.  In this case, artifacts looted from Jordanian tombs are often smuggled across the border into Israel and sold to unscrupulous antiquities collectors.  Thus, even though Jordan has strict national laws against grave robbing (and harsh penalties for transgressors), artifacts stolen from within its borders vanish into the black market before they can be identified and recovered.  If a grave robbing statute cannot be effectively enforced, then its primary purpose - to protect human remains - is frustrated.

But Professor Kersel's research may also help trace the flow of certain artifacts from Jordan into Israel and other neighboring countries.  Her project, aptly named "Follow the Pots," is designed to investigate the illegal trade in Bronze Age pots looted from Jordanian tombs.  By gaining a better understanding of the illegal antiquities trade, researchers may be able to help local authorities crack down on its participants and protect the ancient graves of southern Jordan.

For more information on Follow the Pots, see the DePaul University College of Law’s DePaul Law News Blog.

James Goodwin

Cemeteries Owned by a "Fraternal Organization"

The North Carolina Cemetery Act regulates cemeteries and the cemetery industry in North Carolina. The Cemetery Act states, “Any cemetery beneficially owned and operated by a fraternal organization or its corporate agent for at least 50 years prior to September 1, 1975, shall be exempt from the provisions of Article 9 of this Chapter.” NC Gen. Stat. § 65-47(b). However, the Cemetery Act does not define “fraternal organization,” and this lack of clarity raises questions about the types of organizations that are exempt from the Act.

The Cemetery Act was enacted in 1975. Before 1975 “fraternal organization” was only used three times in North Carolina session laws, and none of these laws defined the term. The IRS grants fraternal organizations tax-exempt status under IRC 501(c)(8) and IRC 501(c)(10). IRC 501(c)(8) is a classification for organizations with a fraternal purpose, that operate under a lodge system, and that provide for the payment of life, sick, accident, or other benefits. IRC 501(c)(10) is a classification for organizations that operate under a lodge system and devote their net earnings exclusively to religious, charitable, scientific, literary, educational, and fraternal purposes, but do not provide for the payment of life, sick, accident, or other benefits. For example, Freemasons have a 501(c)(10) status.

Some fraternal organizations, like Odd Fellows, own and operate cemeteries. Some, like Woodmen of the World, provide insurance and benefits to members. Others, like the Freemasons, have no involvement in the cemetery industry. Under the Cemetery Act, a cemetery owned and operated by a fraternal organization prior to September 1, 1925 has to comply with the regulations, but, because “fraternal organization” is not defined, does this apply to fraternities as they are described in the IRC? It is also possible and reasonable to assume that it applies to other organizations that call themselves fraternities, but that do not fit inside the parameters defined by the IRS. The North Carolina General Assembly should amend the statute to provide clarity. 

Brandon Heffinger