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Washington Report
February 2008
U.S. District Court clarifies funeral home ownership decision
by ICCFA General Counsel Robert M. Fells, Esq.
In December, the U.S. District Court in Maryland ruled on a motion submitted by plaintiffs in Brown v. Hovatter that requested an amendment of the court's earlier decision in October. The ICCFA had intervened in the case as a friend of the court. As previously reported in the December Washington Report, the federal court had ruled that the section of the state Morticians Act "which prohibits corporate ownership in Maryland with indefinite exemptions for corporations holding licenses existing as of June 1, 1945, violates the dormant Commerce Clause of the United States Constitution." However, the court upheld the section of the Morticians Act "which establishes a licensing scheme for the operation of funeral homes in Maryland." Uncertain of how the court's decision should be applied as a practical matter, the plaintiffs asked the court to amend its ruling. Instead of doing so, the court offered clarification.
Specifically, plaintiffs asked if the court's ruling "extend[ed] to non-mortician entrepreneurs and companies the same general right to own corporate-licensed funeral homes that was previously available only to those lucky few able to acquire one of Maryland's 58 'grandfathered' corporate funeral homes" or only "enjoined Maryland from denying corporate ownership to Maryland- licensed morticians." The court stated, "The latter is the holding of the case."
The court explained that its "prior ruling held that anyone capable of owning a funeral home in Maryland may do so in corporate form. ... However, defendants may, but are not obligated to, require that a licensed individual own or co-own a funeral home." Interestingly, the defendants, members of the Maryland Board of Morticians, "state in their response that they will not require that a licensed individual own or co-own a corporate funeral home, despite this Court's ruling that doing so was permissible under [the Constitution]."
The text of the court's new ruling can be reviewed at www.iccfa.com/docs/md_brown_122007.doc.
Copyright ICCFA 2008
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