Additional notes for test 2 Flashcards
Consists of the rules and principals that society has established for the handling and disposition of the dead.
Funeral Law
- Crimes
- Common law
- Statute
- Classification of cries
- Misdmeanor
- Felonies
Criminal Law
- Tort
- Intentional
- Negligence
- Strict liability
- Contracts
- Business law
- Property law
Civil Law
- Common law
- Constitutional law
- Legislative law
- Administrative law
- Case law
Sources of United States Law
Part of the English law that is dervied from custom and judicial precedent rather than statutes or statutory law.
Common Law
- US constitution
- State constitution
Constitutional Law
- Federal statutes
- Us congress and senate
- Congressmen
- Senators
- Functions
- Us congress and senate
- State statutes
- Municipal ordinances
Legislative Laws
- State legislature
- MD General Assembly
- Passes public general and public local laws
- Raises revenues
- Appropriate money to fund government services
- Oversee state executive agencies (DHMH)
- MD General Assembly
State Statutes
- Local Government law
- Enacted by county/city council
- Enforced by county/city agencies
- E.g. curfews, trash, parking, development, etc.
Municipal Ordinances
- Federal Rules and Regulations
- FTC
- OSHA
- EPA
- State rules and regulations
- Promulgated by agencies
- Amended and adopted by the legislature
- Enforced by the Attorney General
Administrative Laws
- Federal
- State
- Stare Decisis
Case Law
- Jurisdiction
- Functions of the Court
- Judicial terminology
- Court procedures
The Judicial Process
- Consumer complaint referred to complaint committee.
- Request for response from licensee
- Agency/board investigation
- Complaint committee makes recommendation to the board
- Minor infraction- send letter/education
- Major infraction- Conflict resolution conference (CRC)
Administrative Procedure
- CRC- like a hearing
- 2 board members (licensee and consumer member)
- CRC makes a recommendation to the board.
- Board votes on CRC recommendation
- Board issues an order based on sanction.
- Fine, suspension, revocation of license
- Appeal rights of licensee
MD State Board Procedure
- Appeal by license to Administrative Law Judge (ALJ)
- ALJ recommendends determination to the board what he thinks of the ruling.
- Board does not have to accept finding of ALJ.
- Licensee can file appeal to Board’s decision with the circuit court.
Appeal Rights- Maryland State Board of Morticians and Funeral Directors
- State law and regulations
- Primary right of disposition
- Preneed
- Cremation
- Case Law
- Common Law (Probate)
- Federal Law (FTC Funeral Rule, OSHA, ADA wage and hour law, Truth in lending, etc.)
Sources of Mortuary Law
- Protect consumers
- Protect employees
- Improve quality of service to families we serve.
- Allow you to stay in business.
Why Follow Mortuary Law?
After undefined decomposition, the dead body ceases to be a dead body in the eyes of the law.
State v. Glass
Supreme Court analyzed what property rights one has in a dead body (1991).
- Quasi property right
- Court held spouse had possessory right to the body and the coroner’s taking of the corneas violated that right.
- Not commercial property
- Law provides bundle of rights to the next of kin.
Brotherton v. Cleveland
- Right to take the body for the purpose of disposition.
- Allow body parts to be used within the confines of the law.
- Exclude others from possession of hte body.
- Dispose of the body
- Invest these rights in the person with the right of disposition.
Quasi-Property (The Body)
Person who left a deceased person in the trunk of the car and then abandoned it. (Nebraska).
- Criminal offense to throw away or abandon any dead human body, or any portion thereof, in any place other than a regular place for burial and under properly issued death certificates.
State v. Robinson
Criminal penalties for the failure to bury or incinerate a corpse within a reasonable tie after death have been applied to funeral directors.
- Tristate Crematory scandal (Georgia)- crematory operator discarded over 300 bodies rather than cremating them.
Travis v. Daniels and People v. Ackley (New York)
Tristate scandal- Georgia
Death scene photographs of a public official were protected from disclosure under Freedom of Information Act (FIA).
- Court based its holding on cultural traditions and common law protections.
- Respect that civilations have provided to burial rights and their counterparts.
- Courts then acknowledged “well-established cultural tradition acknowledging a family’s control over the body and death images of the deceased.” as well as a survivor’s right of privacy in protecting the memory of the deceased.
National Archives and Records Administration v. Favish
- 6th Circuit court upheld Ohio law which prohibited protests within 300 feet of funeral.
- Balanced against 1st ammendment
- Court held State had a valid governmental interest in protecting the privacy of family members wishing to pay their final respects to the deceased.
Phelps-Roper v. Strickland (2008)