Washington Supreme Court upholds fine against cemetery that moved remains without notifying next of kin

By Asia Mayfield | Sep 26, 2018

OLYMPIA, Wash. (Legal Newsline) – A cemetery operator has lost its appeal of a fine against it over disinterring cremains without notifying the next of kin.

The Supreme Court of the state of Washington rejected the cemetery operator's appeal after a lower court ruled that it acted "without authority of law” when it relocated the cremains.

Associate Chief Justice Charles Johnson delivered the court’s majority opinion on Sept. 13. Justice Sheryl McCloud dissented.  

The case revolves around a fine imposed on Southwick Inc. by the Washington State Funeral and Cemetery Board.

The court notes that: “It is a class C felony to remove ‘human remains from a place of interment, without authority of law.’... RCW 68.50.220 allows cemeteries to move remains around within a cemetery, but they must first notify next of kin of their actions.”  

The ruling states Southwick disinterred 37 sets of cremains in 2011 after the company was notified by the city of Olympia that it needed to remove obstructions to the city’s waterline easement. A recently constructed urn garden needed to be relocated. Southwick transplanted the urn garden into an area about 9 feet away from the original spot.  

Cemeteries are “statutorily authorized to make their own rules concerning their day-to-day operations under RCW 68.20.060,” the ruling states.

Southwick argues that it was following its own operating rules when it moved the cremains and therefore was “acting with authority of law.” 

The Supreme Court found that Southwick’s individual business rules do not supersede state laws.

“Southwick offers no case law supporting its argument that its rule making authority includes the authority to make rules that conflict with state statutes. The Department... cites numerous authorities holding that legislatively delegated rule making authority does not permit an agency, municipality, or corporation to make rules that conflict with existing state law,” the court remarked.  

Justice McCloud, however, found that the phrase “without authority of law” is too ambiguous. McCloud reasons that because the phrase is unclear, the justices are compelled to apply leniency.

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