Supreme Court refuses to review funeral home ownership law

Charles Brown says he will have to return to lobbying Annapolis to change law

Charles Brown says he will have to return to lobbying Annapolis to change law

December 03, 2009|By HEATHER KEELS

HAGERSTOWN -- A local cemetery owner is back to square one in his push to change a state law limiting funeral home ownership after the U.S. Supreme Court this week denied review of the law.

Charles Brown, who owns Rest Haven Cemetery on Pennsylvania Avenue, has fought for years against a Maryland law that requires owners of funeral homes in the state to be Maryland-licensed funeral directors, unless they hold one of a limited number of corporate ownership licenses.

Brown, who is not a licensed director, owns Rest Haven Cemetery, but his son, Eric, who is licensed, owns Rest Haven Funeral Chapel on the same property.

Brown said he wants to be able to form a corporation to own the funeral home along with the cemetery.

"If the cemetery owns it, the funeral home can always operate," he said. "If a person owns it, the license is only good for the lifetime of that person."


The only way to get one of Maryland's 58 corporate funeral home licenses is to buy one from another corporation, which can cost as much as $250,000, Brown said.

After a decade of unsuccessfully lobbying the Maryland General Assembly to change the law, Brown in 2006 became one of five plaintiffs in a federal lawsuit challenging the constitutionality of the law.

In 2007, a federal judge found the law violated the Commerce Clause of the U.S. Constitution because it discriminated against companies from other states.

However, the Fourth U.S. Circuit Court of Appeals reversed that decision and reinstated the law, holding that the Commerce Clause applied to the interstate movement of physical goods, not capital and profits, according to a press release from the Institute for Justice, which represented Brown and the other plaintiffs.

Institute for Justice attorneys felt that interpretation was in conflict with Supreme Court rulings about interstate commerce, so they appealed the case to the Supreme Court, said Clark Neily, senior attorney for the Institute for Justice.

The Supreme Court on Monday denied that review.

The Supreme Court gets about 7,000 applications for review each year and takes only 60 or 70 of those, so getting the case to the Supreme Court was a long shot, Neily said.

However, the Supreme Court's decision not to review the Fourth Circuit's ruling could have serious consequences in other industries throughout states covered by the Fourth Circuit, including Maryland, Virginia, West Virginia, and North and South Carolina, Neily said.

"Industry insiders now have a road map for how to saddle out-of-state competitors with anti-competitive business regulations like the ones at issue in this case," Neily said in a press release.

He said an economist testified during the original case that Maryland's anticompetitive regulations on funeral home ownership add about $800 to the cost of each funeral in Maryland.

Brown said he was disappointed with the Supreme Court's decision not to review the case, which put an end to his efforts to challenge the law in court.

Brown said he is going to have to return to lobbying Annapolis and hope he gets a different answer from those delegates that have been newly elected since his last attempt.

"You just have to keep trying," he said. "You can't quit."

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