Southwick, Inc. v. Wash. State

• Decision Date: 13 September 2018
• Docket Number: No. 95237-0,95237-0
• Citation: 426 P.3d 693,191 Wash.2d 689
• Court: Washington Supreme Court
• Parties: SOUTHWICK, INC., a Washington corporation, Petitioner, v. Washington STATE, and Its DEPARTMENT OF LICENSING BUSINESS AND PROFESSIONS DIVISION; Washington State Funeral and Cemetery Board, Respondents.

191 Wash.2d 689

426 P.3d 693

SOUTHWICK, INC., a Washington corporation, Petitioner,

v.Washington STATE, and Its DEPARTMENT OF LICENSING BUSINESS AND PROFESSIONS DIVISION; Washington State Funeral and Cemetery Board, Respondents.

No. 95237-0

Supreme Court of Washington.

Argued June 26, 2018

Filed September 13, 2018

Matthew Bryan Edwards, Owens Davies PS, 1115 W. Bay Drive NW, Suite 302, Olympia, WA 98502-4658, Attorney For Petitioner

R. July Simpson, Washington Attorney General, 1125 Washington Street SE, P.O. Box 40110, Olympia, WA 98504-0110, Attorney For Respondents

JOHNSON, J.

¶ 1 This case challenges a fine imposed on a cemetery for relocating cremains without giving prior notification of its actions to next of kin. This case looks at RCW 68.50.140(4) and what it means to act "without authority of law" under that statutory section. It is a class C felony to remove "human remains from a place of interment, without authority of law." RCW 68.50.140(4). Also, RCW 68.50.220 allows cemeteries to move remains around within a cemetery, but they must first notify next of kin of their actions. Southwick Inc., a cemetery owner and operator, disinterred 37 sets of cremains (human cremated remains) without first notifying next of kin of its actions. Cemeteries are statutorily authorized to make their own rules concerning their day-to-day operations under RCW 68.20.060. Southwick claims it was acting under its own rules in disinterring the cremains without notice to family members, so it was acting with "authority of law." Because Southwick’s rules cannot supersede state statutes, we affirm the Court of Appeals and hold Southwick was not acting with "authority of law" when it disinterred the cremains and thus violated RCW 68.50.140(4). Additionally, we hold that Southwick also violated RCW 68.50.220 for failing to notify next of kin before disinterring the cremains.

FACTS AND PROCEDURAL HISTORY

¶ 2 Forest Cemetery, established in 1857, was operated for many years by the Forest Cemetery Association. In 1947, the association granted the city of Olympia (City) a waterline easement across the property. The City installed a large waterline in the easement that provided the City with its main water supply.

¶ 3 By the 1980s, the Forest Cemetery Association had disbanded and the cemetery fell into disrepair. Southwick purchased Forest Funeral Home and Cemetery and took over the cemetery operations. Southwick met with the Washington State Funeral and Cemetery Board (Board) and agreed to honor all the existing contracts entered into by the prior owner. It had no knowledge of the City’s easement on the property.

¶ 4 Pursuant to RCW 68.20.060 and 68.24.110, Southwick adopted rules and regulations for its day-to-day operations. Southwick’s rule 10(j) states:

The Corporation reserves the right to correct errors made by it in making interments, disinterments or removals.... In the event the error shall involve the interment of the remains of any person in such property, the Corporation reserves and shall have the right to remove and reinter the remains in the property conveyed in lieu thereof.

Admin. Record (AR) at 86, 112. At some point, Southwick created the Devotion Urn Garden in an area immediately adjacent to a large monument, constructed by the cemetery’s previous owner. Southwick entered into contracts for cremains to be buried in small plots in this urn garden.

¶ 5 On August 25, 2011, the City advised Southwick of its waterline easement that ran through the cemetery and requested Southwick remove any obstructions in the easement area. After the City performed a survey, Southwick realized it had placed the urn garden in the easement. Southwick then moved the urn garden about nine feet to relocate it outside the easement area. The garden and relationship of the plots within retained the same alignment.

¶ 6 A granddaughter of two people whose cremains had been buried in the urn garden filed a complaint that Southwick had moved the cremains without providing advance notice of their relocation. On August 26, 2014, the Department of Licensing (Department)¹ issued a statement of charges against Southwick, alleging Southwick had violated RCW 68.24.060,² 68.50.200,³ and 68.50.220. Only the last alleged violation is relevant to this case as it stands before us. RCW 68.50.220 provides:

RCW 68.50.200 and 68.50.210 do not apply to or prohibit the removal of any human remains from one plot to another in the same cemetery or the removal of [human] remains by a cemetery authority from a plot for which the purchase price is past due and unpaid, to some other suitable place; nor do they apply to the disinterment of human remains upon order of court or coroner. However, a cemetery authority shall provide notification to the person cited in RCW 68.50.200 before moving human remains.

(Alteration in original.)

¶ 7 Both parties moved for summary judgment. On October 29, 2015, a presiding officer of the Board held that Southwick had violated RCW 68.50.140(1),⁴ which provides, "Every person who shall remove human remains, or any part thereof, from a grave, vault, or other place where the same has been buried ... without authority of law ... is guilty of a class C felony." The Department had not alleged a violation of that statute. The presiding officer also found Southwick had committed unprofessional conduct under RCW 18.235.130(8) due to its violation of RCW 68.50.140.

¶ 8 Southwick filed a motion for reconsideration by the Board of the presiding officer’s summary judgment order alleging a due process violation, which is not before us,⁵ and arguing that it had not violated RCW 68.50.140 because it was not acting without "authority of law."

¶ 9 After a hearing on Southwick’s motion for reconsideration, the Board entered a final order affirming the summary judgment order, holding Southwick had violated RCW 68.50.140 and RCW 68.24.060 and thus engaged in unprofessional conduct under RCW 18.235.130(8). It imposed a fine of $7,500, as well as a requirement to attempt notification of next of kin and placement of notice in the local newspaper for three days.

¶ 10 Southwick petitioned Thurston County Superior Court for review of agency action under the Administrative Procedure Act (APA), chapter 34.05 RCW, alleging that the Board had misapplied RCW 68.50.140 and 68.24.060 and that its ruling was not supported by substantial evidence. RCW 34.05.570(3)(d), (e). The superior court affirmed the Board’s final order. The Court of Appeals, Division Two, also affirmed the RCW 68.50.140 violation, holding that Southwick’s internal rules and regulations did not provide "authority of law" for purposes of RCW 68.50.140.

Southwick, Inc. v. Wash. State Funeral & Cemetery Bd., 200 Wash. App. 890, 893, 403 P.3d 934 (2017). The court reversed the Board’s finding of a RCW 68.24.060 violation and remanded to the Board with instructions to reconsider appropriate discipline of Southwick for its violations.

¶ 11 Southwick appealed both the due process and the "authority of law" issues to this court. We granted review of only the "authority of law" issue. Southwick, Inc. v. Wash. State Funeral & Cemetery Bd., 190 Wash.2d 1001, 412 P.3d 1260 (2018).

ISSUE

¶ 12 Whether Southwick was acting with "authority of law" when it moved the cremains in response to the City’s request without notifying next of kin.

ANALYSIS

¶ 13 Our review of the Board’s final order is governed by the APA. RCW 34.05.570. As relevant to this case, we may reverse the Board’s order if it is based on an error of law or if it is unsupported by substantial evidence. RCW 34.05.570(3)(d), (e).

¶ 14 We review issues of statutory interpretation and an agency’s conclusions of law de novo. Jametsky v. Olsen, 179 Wash.2d 756, 761, 317 P.3d 1003 (2014) (citing Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 9, 43 P.3d 4 (2002) ); Ames v. Dep't of Health, Med. Quality Assur. Comm'n, 166 Wash.2d 255, 260, 208 P.3d 549 (2009) (citing Kellum v. Dep't of Ret. Sys., 61 Wash. App. 288, 291, 810 P.2d 523 (1991) ). However, we give substantial weight to an agency’s interpretation of the law it administers, especially when the issue falls within the agency’s expertise. Haley v. Med. Disciplinary Bd., 117 Wash.2d 720, 728, 818 P.2d 1062 (1991) (citing St. Francis Extended Health Care v. Dep't of Soc. & Health Servs., 115 Wash.2d 690, 695, 801 P.2d 212 (1990) ). In this case, the Board is charged with administering the statutes in chapter 68.50 RCW.

RCW 68.05.090. Thus, the issue in this case is within its expertise, and we accord its interpretation substantial weight.

¶ 15 RCW 68.50.140(4) provides, "Every person who removes, disinters, or mutilates human remains from a place of interment, without authority of law, is guilty of a class C felony."⁶ RCW 18.235.130(8) makes it unprofessional conduct to violate any provision of chapter 68.50 RCW, and RCW 18.235.110(1)(h) empowers the Board to impose civil penalties, including monetary penalties up to $5,000 per violation.

¶ 16 Chapter 68.50 RCW provides some exceptions and defenses (or authorization) to this general prohibition on disinterring human remains. Remains may be disinterred with a surviving family member’s consent or, if a relative’s consent cannot be obtained, by court order. RCW 68.50.200. These requirements do not apply when a cemetery authority moves remains within a cemetery, but "a cemetery authority shall provide notification to the [next of kin] before moving human remains." RCW 68.50.220. The basis for the statutory violations in this case is not giving statutorily required notification to next of kin before disinterring the cremains. Under RCW 68.50.140(4) and 68.50.220, a violation of .140(4) may also be a violation of .220; the lack of prior notice is common to both. Conversely, notice by a cemetery before disinterment in accordance with .220 is a defense to a violation of .140(4).

¶ 17 Southwick argues it acted pursuant to its own rule 10(j) when it moved the cremains to...