The Funeral Law Blog

Cemetery Car Show Cancelled

Cemeteries carry a reputation as a place for mourning, grief, and sadness for those who visit the grounds.  The fear embedded in those who will never set foot in a cemetery is contributed to cemeteries being personified as scary, forbidden lands.  While these stereotypes of cemeteries have existed since their existence, some cemeteries are taking steps to change the community members’ minds.  Recently, cemeteries are offering to host events on their grounds to welcome all community members to enjoy the grounds.  However, cemeteries attempting to change their public perception has led to complaints from those who use the cemetery for its “intended purpose”.

In Roseville, Minnesota, the Roselawn cemetery board has canceled a car show after some residents voiced concerns about the event’s location.  The Roselawn Cemetery had planned to host the “Rods and Stones” car show on their cemetery campus, but took to social media to cancel the event after local residents expressed their distress.  The Roselawn Cemetery board apologized for planning to host the car show and urged the public to recognize that their “intention was never to be disrespectful or disruptive to any visitor or to the memory of any loved one.”  The Roselawn Cemetery board said the event’s benefits were threefold: it was intended to raise funds for the Minnesota Street Rod Association’s college fund, to help make cemeteries “less intimidating and forbidding,” and to connect with local residents. 

It appears that Roselawn Cemetery’s attempt to connect with the community and invite people to enjoy their grounds was not taken well by those who have loved ones resting in the cemetery grounds.  Should cemeteries try to change their public perception by hosting “fun” events for the community or should they remain a solemn place for prayer and reflection?  It is unclear if hosting a hot-rod car show is the most appropriate manner to utilize the cemetery property, but there may be greater community support for more tame events to take place in the future.

Rivver Cox

The Plot Thickens: A Court Will Have to Sort Out Dispute When Men Placed in Each Other's Graves

In October 2015, Lewis T. Chadwick, Jr. was buried in Pocasset Hill Cemetery in Tiverton, Rhode Island. Five months later, Raymond Murray was buried three graves away. The problem? Chadwick is buried in Murray's grave and Murray is buried in Chadwick's. 

The solution Chadwick's widow prefers, which is supported by the chairwoman of the town cemetery commission, is to leave the men where they are and switch the deeds. However, Murray's family wants the plot they selected, which would involve disinterring the men and re-interring them in the correct graves. The town attempted to facilitate an agreement between the families, but when this proved unsuccessful, the town filed for a declaratory judgment in Superior Court. Until resolved, the men remain in the graves which they presently occupy. 

No Rhode Island statutes directly address this issue, and Rhode Island case law indicates that once a body is buried, a court will only order removal for "necessity" or "laudable purposes." (See Sullivan v. Catholic Cemeteries). The issue here will be whether correcting the mistake falls within "necessity" or "laudable purposes." Another issue will be how to decide which family takes precedence over the other. The existing cases only deal with disputes between members of the same family.

Case law also seems to indicate that "consent" is a "crucial factor" considered by the courts. It is unclear when Murray's family found out about the mistake, but if they found out before burial, and permitted it anyway, did they consent to his burial in that plot? If so, will the court consider the emotional circumstances a negating factor?  

Although case law indicates that cemetery plots are property, courts have distinguished them from other real property in numerous ways. Will a court consider "uniqueness" of the plots as is often a consideration in real property disputes? If so, are the plots unique enough? The plots are in the same row of the cemetery, approximately thirty-two feet apart, and are both four-person plots. 

Finally, Pocasset Hill Cemetery is a municipal cemetery run by the Town of Tiverton. While the town is going to pay for the switch if ordered by a court, will the families have any recourse against the town or the cemetery?

Rebecca Ann Daddino

Jewish Cemetery Vandalized Days Before Jewish Day of Atonement

Yom Kippur, also known as the Day of Atonement, is the holiest day of the Jewish year.  A few select individuals in New York can only hope for atonement this year after vandalizing a New York-area Jewish cemetery just days prior to the start of Yom Kippur.

On October 9, just two days before the evening Yom Kippur began, a Jewish cemetery in upstate New York was found defaced with swastikas, "Heil Hitler," and the letters "SS," representative of the Nazi security force, spray-painted at the entrance.  Although none of the headstones within the cemetery were damaged, the vandals left their mark in conspicuous black spray paint.

The vandals, if caught, may be subject to punishment under New York Penal Law.  Section 145.22 of the Law defines cemetery desecration in the second degree as when "with intent to damage property of another person, and having no right to do so nor any reasonable ground to believe he has such right, he damages any real or personal property maintained as a cemetery, plot, grave, burial place or other place of interment of human remains…"  As a class A misdemeanor, a sentence between fifteen days and one year can be imposed.

Alternatively, § 145.23(a) may apply when the assessed damage amounts to two hundred fifty dollars or more, thus constituting cemetery desecration in the first degree.  Cemetery desecration in the first degree is a class E felony, which is a fixed term crime with a sentence of between three and four years.

Without regard for any potential spiritual ramifications of desecrating a religious cemetery days before the religion's observation of its Day of Atonement, the vandals in question are most certainly subject to these earthly consequences.

Jillian Sexton

Contemplating the Place of Cemeteries in Society: The Proposed Disinterment of Human Remains at Hillside Cemetery in Reno, Nevada

Hillside Cemetery is an old pioneer cemetery in Reno, Nevada. The last burial at Hillside occurred in 1959. The individuals laid to rest at Hillside range from the founding fathers of Reno to a Paiute chief to infant victims of scarlet fever. Regardless of the occupants, Hillside Cemetery fell into disrepair and was, apparently, a popular location for parties. As a result, the owner, Drew Lawton, of Hillside decided to sell the property for development.

Mr. Lawton’s decision was in compliance with N.R.S. § 451.070, which allows a cemetery to order the disinterment and removal of human remains on the property if (1) either “the further maintenance . . . the cemetery . . . is not in accordance with health, safety, comfort, or welfare of the public,” or (2) if a “financial provision must be made for future care of gravesites within a specified area.” After the notice of intent to disinter the bodies was posted, there was immediate push-back. In response to the outcry, Mr. Lawton postponed his decision to disinter the remains. Since the postponement, members of the Reno community have actively worked to beautify and preserve Hillside, demonstrated by the Hillside Cemetery Volunteers page and the Hillside Cemetery Preservation Foundation (HCPF).  

What struck me about this particular instance was the seeming change of heart with regards to Hillside in the community. Hillside was subject to neglect and vandalism. So, why did the Reno community change its mind regarding the importance of Hillside Cemetery? The HCPF highlights the importance of Hillside as a historical site in Reno, but the opportunity to restore Hillside has long presented itself. According the HCPF, Hillside never had a care trust in place, and the last time the gardens were cared for was 1905. I suppose the imminent threat of losing Hillside spurred members of the community into action, illustrating the old adage “you don’t know what you have until it’s (almost) gone.” Either way, it seems Hillside is around to stay, at least for now.

Maria Collins

 

Mass.: Anti-Muslim Bias Transcends Death?

Earlier this year, the Islamic Society of Greater Worcester purchased 55 acres of farmland in the city of Dudley, Massachusetts, to use as a Muslim cemetery. However, their proposal was denied by town officials due to alleged “traffic and environmental concerns.” In response, the group filed a lawsuit against the town in Massachusetts Land Court claiming that the denial was based on anti-Muslim bias, and that town officials had engaged in discriminatory practices that violated the group’s religious rights.

Town officials released a statement denying the allegation, stating that the “Town's zoning and land use practices do not violate any religious rights of the Islamic Society, nor do such practices discriminate against any assembly or institution on the basis of religion or religious denomination." The Town further claimed that town meetings were held where residents of Dudley voiced their concerns about possible problems that could arise from the cemetery. Between the reasons stated were noise concerns, vandalism, an increase in traffic on the road where the cemetery would be built, and potential contamination of groundwater because “Muslims traditionally do not embalm bodies and bury their dead without coffins.”

Last August, Federal prosecutors launched an investigation to determine whether the town’s denial rose to discriminatory treatment under the Religious Land Use and Institutionalized Persons Act (RLUIPA). However, the question remains, is the town of Dudley basing their decision on anti-Muslim bias? More importantly, are they legally allowed to do so?

Unfortunately, Dudley isn’t the first town to resist construction of Muslim cemeteries. Carlisle, Pennsylvania; Farmington, Minnesota; and Farmersville, Texas, are among some of the Towns that have pushed back against Muslim cemeteries. The number of Department of RLUIPA investigations involving institutions related to Islam has increased 38% since September 2010.

In a similar case United States v. City of Lilburn from 2011, the Department filed a suit against the City of Lilburn, Georgia for “its unlawful conduct in violation of RLUIPA.” The suit alleged that the City of Lilburn changed its ordinance to prevent the Shia Muslim community to build a new mosque at its current location. “The suit included allegations that the city’s denial of approval was the result of bias against Muslims and that other similarly sized and situated places of worship had been permitted.” Ultimately, they reached a consent decree that allowed the Shia Muslim community to build a mosque.

Since implemented, RLUIPA has “protect[ed] individuals, houses of worship, and other religious institutions from discrimination in zoning and landmarking laws.”  It provides judicial relief for individuals whose rights are violated, and also “authorizes the Department of Justice to bring suit to uphold people’s rights.”  “Section 2(a) of RLUIPA bars zoning restrictions that impose a ‘substantial burden’ on religious exercise, unless the government can show that it has a ‘compelling interest’ for imposing the restriction and that it is the least restrictive way for the government to further that interest.”

To successfully argue that Dudley violated RLUIPA, the Department has to prove that the regulation (1) imposes a substantial burden, (2) on “religious exercise”, (3) of a person, institution or assembly.  There is no doubt that the Islamic Society of Greater Worcester satisfy prong 2 and 3, but whether a substantial burden exist is a relative determination. “[W]hether a given burden is substantial depends on its magnitude in relation to the needs and resources of the religious organization in question.” It seems that the religious group is currently significantly burdened because it has to bury it’s dead a distant 60-mile drive from Worcester. The Muslim cemetery “would make it much easier for Muslims in the area to bury and visit their dead.” It is unclear whether Dudley will let Islamic Society of Greater Worcester build their Muslim cemetery, but what is clear, is that both groups are not going down without a fight.

Debora Flores

GA state law made it difficult to open Muslim funeral home

Georgia's first Muslim-owned funeral home opened in Norcross, Georgia on September 19, 2016.

Janaza Services of Georgia cannot only serve Muslims, however. The law in Georgia requires owner Abdullah Tahir Siddiqui to serve everyone regardless of religion. To follow Georgia law, Janaza is required to jump through certain hoops that Siddiqui otherwise would not choose to.

For instance, Muslims do not use caskets, but Janaza has eight on display in his showroom. Georgia law requires all funeral establishments to "maintain on the premises at each of its locations an adequate stock of funeral caskets which shall not be less than eight . . . ." O.C.G.A. § 42-18-70-(b)(3) (2010). Muslims, though, typically will wrap a body in a plain, white fabric and place it straight into the ground or sometimes use a simple wooden box.

Further, Muslims do not embalm their dead, but Janaza's funeral director, Ahmad Rashad, is trained to embalm. Georgia law requires all funeral establishments to be operated by licensed funeral directors. O.C.G.A. § 43-18-71(a) (2010). In Georgia, all funeral directors must be licensed to embalm. O.C.G.A. § 43-18-41(c) (2010). Embalming involves draining the blood from a person's body and then replacing the blood with certain fluids and water that preserve the body. This is what gives the dead the appearance that they are sleeping.

Janaza has an embalming room, required under O.C.G.A. § 43-18-70(b)(2) (2010), but Siddiqui does not use the room for embalming. Instead, he uses it for the ritual washing of the body, an important distinction between Muslim and Christian funeral rituals. 

Muslims have the communal obligation of properly caring for the dead. They believe that the dead can hear and feel what is happening to them as they are prepared for burial. Even during the washing, they keep the body carefully covered and clean it multiple times with soap and water.

For the past 12 years, Siddiqui has used Christian funeral homes around Atlanta to wash and prepare dead bodies, but it was difficult because the Christian funeral homes did not understand Muslim rituals. “I feel always pain in my heart, because as a Muslim we have the feeling that even though it’s a dead body, it has a due respect,” Siddiqui said. Significantly, Muslim men cannot handle or wash the bodies of women unless they are married.

Having Janaza, a Muslim-owned funeral home, eases the burden of the entire Muslim community living in the Atlanta area. Siddiqui embraced this responsibility because he was already involved in Muslim-funeral preparation. Rashad plans to charge customers $1,000 for the basic service as well as offer financial assistance for families who cannot afford that cost. Most important to Rashad is not the money but serving his community, Muslim and non-Muslim alike.

Sarah Saint

Oops, a Corpse! A Tale of Death, Garages, and the Law

On September 9, 2015, eleven days after the death of Reverend Anton Godfrey, those tasked with cleaning out his garage were in for a rude awakening when they uncovered four human bodies "in various states of decomposition," along with a box of cremated human remains and a (still yet-to-be-identified) bag of organs.  The family of one of the deceased, Brigitte Godfrey, is now suing Living Waters, the funeral home they paid $1,800 to cremate and "take care of" their loved one's body, on eight counts of negligence.  At least one of the other recovered bodies had also been previously released to Living Waters.

Per the Illinois Department of Financial Regulation, the reverend had been fined and served on multiple prior occasions to "cease and desist his in-home mortuary practices," and for running an "unlicensed practice of funeral directing and embalming."  By all accounts, however, Living Waters funeral home was in full compliance with the necessary requirements and regulations.  So how did we get here?

Presumably, the bodies released to Living Waters were entrusted to the reverend.  The Illinois Funeral Directors and Embalmers Licensing Code requires all licensed persons be "employed by or contracted with a fixed place of practice or establishment devoted to the care and preparation for burial or for the transportation of deceased human bodies."  Unlicensed persons may help in the transportation of remains "to assist in the removal," but only under "immediate, direct supervision of a licensee…"

To protect public interest and concern in the preparation, care, and final disposition of the deceased, Illinois law is particularly detailed when it comes to the practice of funeral directing.  Illinois law provides many avenues under which criminal action may be pursued against an individual or individuals who desecrate a grave or improperly disinter or abuse a corpse, but here, the individual in question is dead and the action is being pursued against the funeral home under a civil action for the tort of negligence.  The Illinois board of examiners in has in the past justly suspended the licenses of the funeral directors responsible for the employee, a decision upheld by the court in Biggs v. Dep't of Registration & Educ., 388 N.E.2d 1099 (App. Ct. 1979).  This sets the stage for a successful negligence action against Living Waters.

In other words…if you ask me, Living Waters's chances of prevailing are dead on arrival.

Jilliann Sexton

A Furry Friend to Comfort the Grieving

As anyone who has lost someone close to them knows, the days following a loved one’s death can be an emotional rollercoaster. Between the visitation, funeral, and burial services, there are numerous events following a death that can emotionally taxing. One funeral home in White Plains, New York has found a way to help ease the pain and emotional strife of the deceased's grieving relatives and friends. Ballard-Durand Funeral and Cremation Services has enlisted the help of Lulu, a sweet and lovable goldendoodle therapy dog, to attend funeral services and interact with grieving loved ones, with the hopes that some of the sadness and pain will be eased, even if just for a short while. Matt Florillo, the owner of Ballard-Duran, has said that Lulu is incredibly in-tune with the emotions of people around her. She has the ability to know who needs her the most, and will sit by those loved ones during funeral services for as long as they need. Lulu also knows how to “pray” during the funeral – crossing her paws and bowing her head – a trick that Florillo says helps ease the tension surrounding such a sad day. Lulu is available for any and all events throughout the grieving process.

While many news outlets such as the Huffington Post and the Today Show have taken a particular interest in Lulu and her adorable trick, a number of funeral homes across the country have also utilized therapy dogs to comfort grieving family members. Three funeral homes in Ohio employ therapy dogs Magic, Dempsey, and Lily to provide “quiet comfort” to loved ones left behind. A variety of breeds can be used for therapy dogs as Magic is Portuguese Water Dog, Dempsey is a Bernese Mountain Dog and Lily seems to be a Bichon Frise. While the breed, size, and age of the dogs all differ, they have one thing in common – their ability to comfort those who need it the most.

I have just become a first-time dog owner myself, and it is almost uncanny how aware dogs are of the emotions of the people surrounding them. I can only imagine how comforting it must be to have a furry friend nearby when dealing with such a sad time in one’s life. There seems to be a growing number of funeral homes that offer therapy dogs, and I can see why this is a popular trend. Of course, there is always the option to not have a therapy dog at a funeral service, but for those who need comfort the most, it seems a furry friend can be a loveable source of relief.

Kelsey Mellan

Should Funeral Directors Take Selfies?

The selfie: the twenty-first century self-portrait born from the union of technology and vanity. Fortified by social media, what started as a teenage fad soon shattered generational barriers and grew into a global obsession that knows no bounds. If you have a smartphone and the dexterity to hold it just above your head at a forty-five-degree angle, you can take a selfie. With a few more taps, that selfie can be uploaded to Twitter, Facebook, or Instagram, ready for all the world to see and react.

But what happens when the digital and death collide? In September, a bereaved Rose Molina accused Texas funeral director David L. Jones of taking a selfie as her cousin’s casket was loaded into its hearse. Molina first noticed something was off when she saw Jones lift his phone into the selfie position. “You could see that he had it kind of angled, you know. You have it positioned in a certain way to catch the background.” Molina confronted Jones, who assured her he was just adjusting his tie. Molina wasn’t convinced.

With a little digital digging on Jones’ Facebook page, Molina disinterred a collection of selfies he had taken in front of caskets and hearses. In one selfie that shows Molina in a red bow tie standing in front of an empty hearse, a Facebook user commented: “Looking ready to take on the world and win!!!!” Juxtaposed against the hearse’s inherent indication of loss, the post is rich with callous irony.  

After the finding, Molina told a Houston TV station that the incident “tainted” her cousin’s funeral, and she intends to file a complaint with state officials. Kyle Smith, a staff attorney for the Texas Funeral Services Commission (TFSC), told the New York Post that Jones had been licensed as a funeral director since December 1, 2011, and had no previous complaints against him.

According to Smith, if TFCS were to find Jones guilty of unprofessional conduct, he could face a fine up to $5,000. TFCS will not launch an investigation until an official complaint is filed.

Is Jones' conduct unprofessional? Today, the answer is pretty clearly "yes." Taking selfies of a family's deceased relative's casket without the family's consent is an obvious "no-no" for funeral directors. But would Jones' conduct be unprofessional if it occurred one hundred years ago? In previous centuries, post-mortem photography was commonplace in American culture. Though undoubtedly insensitive to Molina and her grief-stricken relatives, Jones’ selfies evidence a level of comfort wholly antithetical to modern impressions of death. If the selfie obsession is capable of spreading acceptance of death, then perhaps these twenty-first century self-portraits have more to offer than appears at face value.   

Emily Lagan

The Struggle for Closure at Florida's Dozier School for Boys

Arthur G. Dozier's School for Boys, which opened in Marianna, Florida, in 1897, was the first juvenile detention center for boys in the state. The institution was active for over a century until its closing in 2011. The original statutory objective of the school was

"the making of . . . not simply a place of correction, but a reform school, where the young offender of the law, separate from vicious associates, may receive careful physical, intellectual, and moral training, be reformed and restored to the community with purposes and character fitting for a good citizen . . . ."

The school from its inception accepted boys of all races, but maintained segregation between its white and black "offenders." Young white men were kept to the south side of the school, while young black men were kept to the north—next to the unmarked northern cemetery. 

Dozier's history is plagued with accusations of abuse that did not seem to affect any real longterm change. This history and testimony from survivors of the institution inspired a forensic anthropologist from the University of South Florida, Dr. Erin Kimmerle, to initiate an investigation, with a plan to map the unmarked graveyard with ground-penetrating radar ("GPR"). A simple field survey lead her team to believe that the Dozier campus's northern cemetery contained more graves than the school's records provided for, and that a second cemetery existed on the south side of the campus. A permit for excavation was granted in 2013 and by 2014, Dr. Kimmerle's research indicated that there were 55 individuals buried on Dozier campus—twice the number the school had accounted for. 

The call for further investigation and its results led to discourse in the community. This was a sensitive topic, to the victims, the survivors, and family and friends of both, as well to locals without any direct connection to the school. The county, eager to clean its hands of the whole mess, tried to sell the land in 2012. The relative of a victim was able to get a judge to halt such proceedings. The people left behind by the tragedy of Dozier were hurting and wanted answers, while the locals of the area felt that the accusations being brought forth were a personal insult—they fought back by threatening to charge Dr. Kimmerle with the felony of disturbing "a human grave without authority," although no graves had been disturbed. 

The legal route also failed Dr. Kimmerle at this time. A judge denied a petition for exhumation, stating that Dr. Kimmerle's team failed to "meet the threshold for exhumation, [that] there must be more than a suggestion that an autopsy might be probative." Instead the evidence must show that exhumation shows a "good possibility that an autopsy would be revealing as to the cause of death." Judge wright cited the case Currier v. Woodlawn Cemetery, 200 N.Y. 162, 90 N.E.2d 18 (1949): "The quiet of the grave, the repose of the dead, are not lightly to be disturbed. Good and substantial reasons must be shown before disinterment is sanctioned."

While Dr. Kimmerle was able to successfully excavate and exhume the bodies at Dozier, validating the allegations of victims, survivors, and relative, the whole affair and its aftermath leaves plenty of questions behind: How was the school allowed to get away for this so long? How far does community pride go in shielding the evils happening in our own backyard? And why was respect for "the quiet of the grave" so much more important than justice? 

People have speculated on most of these questions for a lot longer than Dozier's excavation scandal has existed. One has to wonder, though—how could a judge find the graves of potential torture victims to be "quiet?" The broader concept of this question is what now plagues the community. The State has drafted and passed plans to turn the Dozier campus into a memorial while also covering "the cost of funerals, reinterment, and grave markers for the boys." Some people think that the legislature has no business getting involved in what happens to these boys' remains. Another camp may believe that these boys deserve this quiet of the grave often referenced to in the common law of human remains, and such quiet will not be found at the site where they suffered. Most everyone can agree that some memorialization is necessary, either for the individual victims, survivors, and loved ones, or to just acknowledge that something heinous occurred and was allowed.

Caitlin Stone