Powers v. Harris

Decision Date23 August 2004
Docket NumberNo. 03-6014.,03-6014.
Citation379 F.3d 1208
PartiesKim POWERS; Dennis Bridges; Memorial Concepts Online, Inc., Plaintiffs-Appellants, v. Joe HARRIS, in his official capacity as President of the Oklahoma State Board of Embalmers and Funeral Directors; Stephen Huston, Charles Brown, Terry Clark, Chris Craddock, Keith Stumpff, and Scott Smith, each in their official capacity as a Member of the Oklahoma State Board of Embalmers and Funeral Directors, Defendants-Appellees. The Claremont Institute Center for Constitutional Jurisprudence; Pacific Legal Foundation, Amici Curiae.
CourtU.S. Court of Appeals — Tenth Circuit

Appeal from the United States District Court for the Western District of Oklahoma, Stephen P. Friot, J.



Clark M. Neily, III, Institute for Justice, Washington, DC (William H. Mellor, Institute for Justice, Washington, DC, and Andrew W. Lester, Lester, Loving & Davies, PC, Edmond, OK, with him on the briefs), appearing for Plaintiffs-Appellants.

Stefan K. Doughty, Assistant Attorney General, Oklahoma City, OK, appearing for Defendants-Appellees.

John C. Eastman, The Claremont Institute Center for Constitutional Jurisprudence, Orange, CA, filed an amicus curiae brief.

Deborah J. La Fetra and Timothy Sandefur, Pacific Legal Foundation, Sacramento, CA, filed an amicus curiae brief.

Before TACHA, Chief Circuit Judge, McKAY, and TYMKOVICH, Circuit Judges.

TACHA, Chief Circuit Judge.

Hornbook constitutional law provides that if Oklahoma wants to limit the sale of caskets to licensed funeral directors, the Equal Protection Clause does not forbid it. See Fitzgerald v. Racing Assoc. of Cent. Iowa, 539 U.S. 103, 109, 123 S.Ct. 2156, 156 L.Ed.2d 97 (2003) (holding that the Equal Protection Clause does not prohibit Iowa's differential tax rate favoring the intrastate racetrack over the intrastate riverboat gambling industry); Ferguson v. Skrupa, 372 U.S. 726, 732-33, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963) ("If the State of Kansas wants to limit debt adjusting to lawyers, the Equal Protection Clause does not forbid it."). Plaintiff-Appellants Kim Powers, Dennis Bridges, and Memorial Concepts Online, Inc. (collectively "Plaintiffs"), who wish to sell caskets over the Internet without obtaining the licenses required by Oklahoma law, challenge the soundness of this venerable rule. Seeking declaratory relief, Plaintiffs sued Defendant-Appellees, who are members of the Oklahoma State Board of Embalmers and Funeral Directors ("the Board"), the relevant licensing authority. After a full bench trial, the District Court ruled for the Board. On appeal, Plaintiffs contend that Oklahoma's licensing scheme violates the Privileges and Immunities, Due Process, and Equal Protection clauses of the Fourteenth Amendment to the Federal Constitution. We take jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.


The Oklahoma Funeral Services Licensing Act, Okla. Stat. tit. 59, § 395.1 et seq. ("FSLA"), and Board rules promulgated pursuant to the FSLA provide the regulatory scheme for the funeral industry in Oklahoma. Pursuant to the FSLA, any person engaged in the sale of funeral-service merchandise,1 including caskets, must be a licensed funeral director2 operating out of a funeral establishment.3 Id. at § 396.3a; see also id. at § 396.6(A) (prohibiting sale of funeral merchandise without a license).4

Oklahoma does not, however, apply this licensing requirement to those who sell other funeral-related merchandise (e.g., urns, grave markers, monuments, clothing, and flowers). Furthermore, because the Board distinguishes between time-of-need and pre-need sales,5 this licensing requirement does not apply to all casket sales.6 Specifically, although a person must be fully licensed to make time-of-need sales,7 a salesperson may lawfully sell caskets pre-paid without a license so long as that person is acting as an agent of a licensed funeral director.

Finally, while the Board may issue orders to enforce the FSLA, see id. at § 396.2a, the FSLA limits its enforcement to intrastate casket sales only, Dist. Ct. Op. at 3 (finding of fact). As such, an unlicensed Oklahoman may sell a time-of-need casket to a customer outside of Oklahoma — indeed, Plaintiffs have sold caskets to consumers located outside of Oklahoma — and an unlicensed salesperson who is not located in Oklahoma may sell a time-of-need casket to a customer in Oklahoma. The requirement that a salesperson possess both a funeral director's license and operate out of a licensed funeral establishment applies, therefore, only to the intrastate sale of time-of-need caskets in Oklahoma.

Obtaining these licenses is no small feat. According to the Board's rules, an applicant for a funeral director's license must complete both sixty credit hours of specified undergraduate training8 and a one-year apprenticeship during which the applicant must embalm twenty-five bodies. An applicant also must pass both a subject-matter and an Oklahoma law exam. See generally Okla. Admin. Code §§ 235:10-1-2, 10-3-1. Furthermore, to be licensed as a funeral establishment in Oklahoma, a business must have a fixed physical location, a preparation room that meets the requirements for embalming bodies, a funeral-service merchandise-selection room with an inventory of not less than five caskets, and adequate areas for public viewing of human remains. See generally id. at §§ 235:10-1-2, 10-3-2. In reflecting on these legislative and administrative regulations, the District Court concluded that "they evince an intent to forego laissez faire treatment of those sales and services when provided in this State. Limiting the sale of caskets to sellers licensed by the Board is, undeniably, a major component of that statutory scheme." Dist. Ct. Op. at 13.

Memorial Concepts Online, Inc. is an Oklahoma corporation created, operated, and owned by Ms. Powers and Mr. Bridges to sell funeral merchandise over the Internet.9 It offers no other death- or funeral-related services, plays no role in the disposition of human remains, and is not licensed in Oklahoma as a funeral establishment. Although Ms. Powers, who lives in Ponca City, Oklahoma, has many years of experience selling caskets on a pre-need basis as the agent of a licensed Oklahoma funeral director, she is not licensed by the Board as either a funeral director or as an embalmer. Likewise, although Mr. Bridges has been a licensed funeral director in Tennessee for over twenty years, he is not licensed in Oklahoma. As a part of their current enterprise, Plaintiffs wish to sell in-state, time-of-need caskets to Oklahomans over the Internet.10 They have foregone these sales because they "have a reasonable and genuine fear that if they were to sell caskets to Oklahoma consumers, they might be prosecuted for violation of the FSLA and Board rules." Dist. Ct. Op. at 3.

Importantly, Plaintiffs have no desire to obtain the appropriate Oklahoma licenses because they view their requirements as irrelevant to the operation of an intrastate, Internet, retail, casket business. On this point, the District Court specifically found that

very little specialized knowledge is required to sell caskets. Most consumers select caskets based on price and style. Any information a generally educated person needs to know about caskets in order to sell them can be acquired on the job. Less than five per cent of the education and training requirements necessary for licensure in Oklahoma pertain directly to any knowledge or skills necessary to sell caskets. As a result of the substantial misfit between the education and training required for licensure and the education and training required to sell caskets in Oklahoma, people who only wish to sell caskets, if they wish to make in-state sales, are required to spend years of their lives equipping themselves with knowledge and training which is not directly relevant to selling caskets. Dist. Ct. Op. at 5.

Thus, Plaintiffs brought this declaratory judgment action, asserting that the FSLA violates the Privileges and Immunities, Due Process, and Equal Protection clauses of the Fourteenth Amendment to the United States Constitution.11 After a thorough bench trial, the District Court, in its well-reasoned order and memorandum, found for the Board on all counts. Plaintiffs filed a timely notice of appeal.


"We review challenges to the constitutionality of a statute de novo." United States v. Plotts, 347 F.3d 873, 877 (10th Cir.2003) (quotations omitted). We review the District Court's factual findings for clear error. Fed.R.Civ.P. 52(a).


Plaintiffs contend that the FSLA violates the Privileges and Immunities Clause of the Fourteenth Amendment. U.S. Const. amend. XIV, § 1 ("No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States[.]"). Citing Saenz v. Roe, 526 U.S. 489, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999), they contend that "the right to earn an honest living ... [is found] in the Privileges and Immunities Clause." Aplt. Brief at 62. Despite Plaintiffs' protestations, Saenz does not mark a sea change in long-standing constitutional jurisprudence. As such, we agree with the District Court's disposition of this claim: "There is no merit to this ground for challenge. Revival of the Privileges and Immunities Clause may be an interesting and useful topic for scholarly debate but this memorandum is not the place for that discussion." Dist. Ct. Op. at 8 (citations omitted). To the extent that Plaintiffs argue that we should overrule the Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 21 L.Ed. 394 (1872), it is enough to remind Plaintiffs that "it is [the Supreme] Court's prerogative alone to overrule one of its precedents." State Oil Co. v. Khan, 522 U.S. 3, 20, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997); but see Saenz, 526 U.S. at 521, 119 S.Ct. 1518 (Thomas, J.,...

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