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Southwick, Inc. v. Washington State

Court of Appeals of Washington, Division 2

October 17, 2017

SOUTHWICK, INC., a Washington corporation, Petitioner,
v.
WASHINGTON STATE, AND ITS DEPARTMENT OF LICENSING BUSINESS AND PROFESSIONS DIVISION, WASHINGTON STATE FUNERAL AND CEMETERY BOARD. Respondent.

          OPINION

          SUTTON, J.

         Southwick, Inc. appeals from the superior court's order affirming the Washington State Funeral and Cemetery Board's (Board) decision sanctioning Southwick for moving cremains[1] to new cemetery plots without notifying the families. Southwick argues that its procedural due process rights were violated when the presiding officer originally granted summary judgment in favor of the Department of Licensing (Department) based on RCW 68.50.140 when that statute was not cited in the original notice of violation or argued at the summary judgment hearing. Southwick also argues that (1) Southwick was authorized to move the cremains based on its own operating rules and (2) the Board incorrectly interpreted and applied the statutes governing plotting cemeteries and moving human remains.[2]

         We hold that Southwick's opportunity to argue the applicability of RCW 68.50.140 at a hearing before the Board ultimately satisfied the requirements of procedural due process in this case. And we hold that the Board properly concluded that Southwick violated RCW 68.50.140 but that the Board erred by concluding that Southwick violated RCW 68.24.060. Because the Board did not specify how it reached its determination on sanctions, we remand to the Board to reconsider the appropriate discipline for Southwick's violation of RCW 68.50.140.

         FACTS

         From 1857 to 1989, Forest Cemetery Association operated Forest Memorial Cemetery (Cemetery) within the City of Olympia (City). In 1947, the Cemetery granted an easement to the City to construct, operate, and maintain a water main. In 1989, the Board granted Southwick authority to operate the Cemetery. Southwick was unaware of the City's easement. Around 2002, Southwick established an urn garden over the City's easement. By 2011, 37 urns containing human cremains were interred within the urn garden.

         In 2011, the City notified Southwick that it had violated the terms of the easement by installing encroachments over the easement. The City demanded that any encroachments be removed from the easement. Between 2013 and 2014, Southwick worked to remove the encroachments from the City's easement. In order to do so, Southwick relocated the urn garden approximately 9 feet from its original location. When relocating the urn garden, Southwick removed 37 urns from their burial place and reburied them in new plot locations. Southwick kept the urns in the same juxtaposition as the original plots. Southwick did not notify the families of the removal, relocation, and reburial of the urns.

         The Department served Southwick with a statement of charges alleging unprofessional conduct under RCW 18.235.130.[3] The Department alleged that Southwick violated RCW 68.24.060-amendment of cemetery maps and plats-by replotting the cemetery which resulted in disturbing human remains. The statement of charges also alleged that Southwick moved human remains in violation of RCW 68.50.200, which requires obtaining permission from next of kin to move human remains, and RCW 68.50.220, which provides exceptions to the consent requirement but requires notification to next of kin prior to moving human remains.

         Neither party disputed any of the underlying facts. The Department filed a motion for partial summary judgment of all issues except sanctions. Southwick filed its own motion for summary judgment. A presiding officer heard both motions. The presiding officer granted partial summary in favor of the Department based on the following conclusions of law:

2. In response to the City's order to remove encroachments from the easement, the Cemetery was surveyed by the City. Pursuant to the survey, the Cemetery was forced to alter the location of the Urn Garden which is contemplated under RCW 68.24.060 moving all the inurnment plots from one location to another. In doing so, the Cemetery was also forced to disturb human remains, so the action was not authorized under RCW 68.24.060.
3. Alternatively, human remains may be removed and moved to a new location within the [C]emetery so long as notice and permission is granted by a surviving relative, or if there is a court order and the surviving relative is notified. RCW 68.50.200; RCW 68.50.210; RCW 68.50.220.
4. In this case, there was a potential for the City of Olympia to obtain a court order, but no order was obtained. Had the City obtained a court order, the Cemetery would still be required to provide notice to a surviving relative under RCW 68.50.220. Without a court order, the Cemetery was required to not only notify, but also to obtain consent, from a surviving relative or the Thurston County Superior Court.
5. Therefore, the Cemetery did not comply with any of the authorizing statutes listed above.
6. The Cemetery is in direct violation of RCW 68.50.140 for unlawful disturbance, removal or sale of human remains.

         Administrative Record (AR) at 298-99. The presiding officer concluded that the "act of disturbing human remains without obtaining consent or even notifying the families of the deceased" constituted unprofessional conduct for the purposes of RCW 18.235.130. AR at 299. The presiding officer referred the case to the Board for a hearing on appropriate sanctions.

         Before the hearing, Southwick filed a motion for reconsideration of the presiding officer's decision with the Board. In both the motion and argument, Southwick addressed the application of RCW 68.50.140. In its final order, the Board considered Southwick's motion for reconsideration.

The Board then made the following conclusions of law:
4.4On reconsideration, this tribunal finds that RCW 68.50.140 provides a general prohibition against removal of interred human remains. The respondent removed the interred human remains of 37 people and so has violated RCW 68.50.140, unless one of two potentially applicable exceptions applies.
4.5 One potential exception to the general prohibition is codified in RCW 68.50.200, which allows interred remains to be moved so long as consent for removal is obtained from next of kin. In this case, the Respondent failed to get consent of next of kin prior to removing the interred human remains and so did not meet the requirements of this exception.
4.6The other potential exception to the general prohibition is codified in RCW 68.50.220, which provides that a cemetery authority may move interred remains in response to a court order. However, even when a court order is obtained, the next of kin must be notified. In this case, there was no court order requiring Respondent to remove the interred remains. Further, ...

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