Inc. appeals from the superior court's order affirming
the Washington State Funeral and Cemetery Board's (Board)
decision sanctioning Southwick for moving
cremains 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
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
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.
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.
Department served Southwick with a statement of charges
alleging unprofessional conduct under RCW
18.235.130. 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.
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.
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.
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.