Blue Hills Cemetery, Inc. v. Board of Registration in Embalming and Funeral Directing

• Decision Date: 14 December 1979
• Citation: 398 N.E.2d 471,379 Mass. 368
• Parties: BLUE HILLS CEMETERY, INC. et al. 1 v. BOARD OF REGISTRATION IN EMBALMING AND FUNERAL DIRECTING et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 471

398 N.E.2d 471

379 Mass. 368

BLUE HILLS CEMETERY, INC. et al. ¹ v. BOARD OF REGISTRATION IN EMBALMING AND FUNERAL DIRECTING et al. ²

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Sept. 13, 1979.

Decided Dec. 14, 1979.

Regina Williams Tate, Roslindale (Richard W. Murphy, Braintree, with her), for plaintiffs.

Alan K. Posner, Asst. Atty. Gen., for the Commonwealth & another.

Paul F. Markham, Boston, for Massachusetts Funeral Directors Ass'n, Inc., intervener (Daniel G. Harrington, Sp. Asst. Atty. Gen., for Bd. of Registration in Embalming and Funeral Directing, with him).

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN, WILKINS and ABRAMS, JJ.

ABRAMS, Justice.

The Legislature has provided that a corporation may engage in the business of funeral directing only if it engages in no other business. G.L. c. 112, § 87. ³ The plaintiffs contend that this restriction violates the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution as well as Part II, c. 1, § 1, art. 4, of the Constitution of the Commonwealth and arts. 1 and 10 of its Declaration of Rights.

Blue Hills Cemetery, Inc., is a Massachusetts corporation operating a cemetery in the town of Braintree. Blue Hills wishes to create a funeral directing establishment at its place of business. To this end, Blue Hills retained, as an employee, plaintiff Gerald Scally, a certified funeral director and embalmer, and applied to the Board of Registration in Embalming and Funeral Directing ⁴ for a funeral directing establishment certificate.

The board rejected Blue Hills' application, ruling that G.L. c. 112, § 87, prohibits corporations which are conducting any other business from engaging in funeral directing. Since Blue Hills could not obtain an establishment certificate, the board also denied Scally's request for a license to operate as a funeral director from Blue Hills' place of business. The plaintiffs then commenced this action, seeking a declaratory judgment that the "other business" restriction of § 87 violates the State and Federal Constitutions.

In essence, Blue Hills argues that statutory regulations governing funeral directing and embalming serve only two goals, first, preventing disease, and second, assuring that funeral directors and embalmers possess necessary technical skills. Blue Hills acknowledges the validity of these legislative ends, but argues that the "other business" prohibition of § 87 bears no rational relationship to either objective. The statute, therefore, is said to violate the sustantive due process guarantees of the State and Federal Constitutions. Similarly, Blue Hills argues that the legislative classification of corporations into those engaged in multiple businesses on the one hand and those engaged solely in funeral directing on the other cannot rationally be said to further either postulated objective, and the statute therefore constitutes an unconstitutional denial of the right to equal protection of the laws. Finally, Scally advances parallel challenges to the statute, on the basis that the board's denial of his license application rests on its finding that § 87 prohibits the issuance of an establishment certificate to Blue Hills.

The judge, in response to cross motions for summary judgment filed by the plaintiffs and the Attorney General, and on the basis of affidavits and a statement of agreed facts, ⁵ declared the statute constitutional. Blue Hills and Scally appealed from this judgment, and we granted their petition for direct appellate review. We affirm.

Standard of review. We note at the outset that § 87 represents an archetypical instance of legislative regulation of economic activity. Section 87 "trammels (no) fundamental personal rights" ⁶ and "is drawn upon (no) inherently suspect distinctions." Friedman v. Rogers, 440 U.S. 1, 17, 99 S.Ct. 887, 898, 59 L.Ed.2d 100 (1979), quoting from New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976). See Zayre Corp. v. Attorney Gen., 372 Mass. 423, 432-433, 362 N.E.2d 878 (1977). Those who challenge the constitutionality of such legislation "carry a heavy burden in seeking to overcome the statute's presumption of constitutionality." American Mfrs. Mut. Ins. Co. v. Commissioner of Ins., --- Mass. ---, --- ^A, 372 N.E.2d 520, 525 (1978).

It follows as a "corollary" of this presumption, ⁷ Pinnick v. Cleary, 360 Mass. 1, 14, 271 N.E.2d 592 (1971), that "(u)nless the act of the Legislature cannot be supported upon any rational basis of fact that reasonably can be conceived to sustain it, the court has no power to strike it down as violative of the Constitution." Sperry & Hutchinson Co. v. Director of Div. on Necessaries of Life, 307 Mass. 408, 418, 30 N.E.2d 269, 274 (1940). See Commonwealth v. Henry's Drywall Co., 366 Mass. 539, 546, 320 N.E.2d 911, 916 (1974) ("we are not required to blind ourselves to possible rationales that may have influenced the Legislature"); Marshal House, Inc. v. Rent Control Bd. of Brookline, 358 Mass. 686, 695, 266 N.E.2d 876, 883 (1971) ("as long as there are possible findings which the Legislature could reasonably have made in the legitimate exercise of the police power its acts will be upheld"); Zayre Corp. v. Attorney Gen., 372 Mass. 423, 432, 362 N.E.2d 878, 884 (1977) (statute may be justified by "any conceivable set of facts or findings").

The deference to legislative judgments implicit in this standard of review does not reflect "an abdication of the judicial role," but rather a "recognition of its . . . undesirability of the judiciary substituting its notions of correct policy for that of a popularly elected Legislature" where neither the State nor Federal Constitution marks the values at issue as demanding heightened judicial scrutiny. Zayre Corp. v. Attorney Gen., supra at 433, 362 N.E.2d at 884.

It is also clear that the right to engage in any lawful occupation is an aspect of the liberty and property interests protected by the substantive reach of the due process clause of the Fourteenth Amendment to the United States Constitution and analogous provisions of our State Constitution. McMurdo v. Getter, 298 Mass. 363, 365-366, 10 N.E.2d 139 (1937). We do not denigrate in any way the importance of this right, which has been termed "the most precious liberty that man possesses." Barsky v. Board of Regents of Univ. of N.Y., 347 U.S. 422, 472, 74 S.Ct. 650, 666, 98 L.Ed. 829 (1954) (Douglas, J., dissenting). But the same constitutions that create the right leave it vulnerable to qualification or restriction by any valid exercise of the Legislature's police power, "the broad power, never precisely delimited, to take rational action for the protection of the public safety, health, morals, comfort and good order." McMurdo v. Getter, supra, 298 Mass. at 366, 10 N.E.2d at 141.

Our task here is therefore both limited and clear: we must determine whether § 87 represents a valid exercise of the police power. And we must do so by assessing the rationality of the connection between the legislative means adopted in § 87 and those permissible public ends the Legislature may plausibly be said to have been pursuing.

Due process claims. The due process clause of the Fourteenth Amendment to the United States Constitution demands that a statute bear a "reasonable relation to a permissible legislative objective." Pinnick v. Cleary, 360 Mass. 1, 14, 271 N.E.2d 592, 601 (1971). Under the analogous provisions of our State Constitution, we must determine whether § 87 "bears a real and substantial relation to the public health, safety, morals, or some other phase of the general welfare." Sperry & Hutchinson Co. v. Director of Div. on the Necessaries of Life, 307 Mass. 408, 418, 30 N.E.2d 269, 275 (1940). ⁸

Section 87 exists as part of a comprehensive statutory scheme regulating this State's funeral industry. See generally G. L. c. 112, §§ 82-87; G. L. c. 13, §§ 29-31. As Blue Hills is, of course, aware, the State's concern for the treatment afforded its dead and their families extends beyond the funeral industry; cemeteries are subject to a set of similarly thorough regulations. See generally G. L. c. 114, §§ 1-50.

In light of this complex pattern of often minutely detailed regulation the Legislature's possible objectives in enacting § 87 cannot fairly be limited to the prevention of disease and the assurance of certain minimum levels of technical skill. The Legislature was free to pursue the more general but equally valid goal of enhancing the quality of funeral services, which are always rendered and most often contracted for under emotional circumstances. See State Bd. of Funeral Directors & Embalmers v. National Chapels, Inc., 249 So.2d 677, 678 (Fla.1971). "The Legislature possesses a large measure of discretion to determine what the public interests require and what means should be taken to protect those interests." Merit Oil Co. v. Director of Div. on Necessaries of Life, 319 Mass. 301, 304-305, 65 N.E.2d 529, 532 (1946). It was open to the Legislature to conclude that integration of funeral services into the operations of a large, diversified corporation would diminish the personal quality of such services. We cannot say that the statutory means chosen are not reasonably related to a valid legislative goal.

Blue Hills argues, however, that by tying in cemetery and funeral services, prices to consumers might be reduced. Even assuming this to be true, ⁹ legislation which furthers goals other than lessening the cost of services is not thereby rendered unconstitutional. Contrary to Blue Hills' further argument, the fact that the original legislation enacting § 87 may have been sponsored by the Massachusetts Funeral Directors Association also does not render the statute unconstitutional. ¹⁰ Corning Glass Works v. Ann & Hope, Inc. of Danvers, 363 Mass. 409, 419, 294 N.E.2d 354 (1973). Supreme Malt Prods. Co. v. Alcoholic Beverages Control...