Brown v. Hovatter

561 F.3d 357, 2009 U.S. App. LEXIS 6411, 2009 WL 793609
CourtCourt of Appeals for the Fourth Circuit
DecidedMarch 27, 2009
Docket08-1121, 08-1125
StatusPublished
Cited by30 cases

This text of 561 F.3d 357 (Brown v. Hovatter) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Hovatter, 561 F.3d 357, 2009 U.S. App. LEXIS 6411, 2009 WL 793609 (4th Cir. 2009).

Opinions

Affirmed in part and reversed in part by published opinion. Judge NIEMEYER wrote the opinion, in which Judge TRAXLER joined. Judge SHEDD wrote a separate concurring opinion.

OPINION

NIEMEYER, Circuit Judge:

Charles Brown, Joseph Jenkins, Brian Chisholm, and Gail Manuel, who refer to themselves as “funeral and cemetery entrepreneurs,” commenced this action to strike down as unconstitutional the Maryland Morticians and Funeral Directors Act (the “Morticians Act”), Md. Health Occ. Code § 7-101 et seq. They contend that the Act, insofar as it prohibits corporate ownership of mortician’s licenses and funeral establishments (except for 58 corporations grandfathered into the Act in 1945) and unlicensed individual ownership of funeral establishments (except for surviving spouses and executors of licensed morticians), violates the Equal Protection Clause, the Due Process Clause, and the dormant Commerce Clause of the U.S. Constitution. They argue: “Effectively shielded from most out-of-state competition, Maryland funeral industry members profit handsomely from the most blatantly anti-competitive funeral regulation in the nation, [effectively] add[ing] nearly $800 to the cost of a funeral in Maryland.” (Internal quotation marks and record references omitted). They claim that they are unable to participate equitably in Maryland’s funeral industry because of Maryland’s anti-competitive restrictions on funeral establishment ownership.

The district court, ruling on motions for summary judgment, concluded that the Morticians Act did not violate either the Equal Protection Clause or the Due Process Clause, but that it did violate the dormant Commerce Clause. In support of its dormant Commerce Clause ruling, the court said that the Act’s “corporate [ownership] prohibition severely limits the ability of out-of-state businesses from opening a funeral home in Maryland.” The parties filed cross-appeals.

For the reasons that follow, we affirm the district court’s conclusions with respect to the Equal Protection Clause and the Due Process Clause for substantially the same reasons given by the district court. And because Maryland’s licensing requirements do not unjustifiably burden interstate commerce, we reverse the district court’s dormant Commerce Clause ruling. [360]*360At bottom, we conclude that the Morticians Act is constitutional as to each of the plaintiffs’ challenges.

I

The Morticians Act requires individuals who wish to “practice mortuary science in [Maryland],” to be licensed by the Maryland State Board of Morticians. Md. Health Occ.Code § 7-301(a). To qualify for a license, an individual must be of good moral character; must have completed an apprenticeship; must have a specified educational background; and must have passed national and Maryland examinations. Id. § 7 — 303(b).

The Act also requires any individual who owns a “funeral establishment” to license the establishment, ie., “building, structure, or premises from which the business of practicing mortuary science is conducted.” Id. §§ 7-310, 7-101(h). Unlicensed individuals may not own a funeral establishment, except for spouses and executors of deceased licensed individuals. Id. §§ '7-310(c)(2), 7-308, 7-308.1.

Corporations, except those grandfathered in as of 1945, may not be licensed as morticians or funeral directors, id. § 7-309, and may not own a funeral establishment, see id. § 7-310. Under the grandfather clause, enacted in 1945, a corporation, that held a license on June 1, 1945, that has been continually renewed, may own and operate a funeral establishment and continue to do so as long as the corporation exists, provided that “any practice of mortuary science that is conducted for the corporation is practiced by a licensed individual.” Id. § 7-309(b), (d). The parties agree that there are 58 corporations grandfathered under § 7 — 309(b), that are licensed to engage in the business or profession of “funeral directing or embalming,” allowing them to own and operate funeral establishments, and the stock of these corporations is freely transferable by its owners. Currently, the stock of 3 of the 58 corporations remains in the hands of the original owners, and the stock of 30 of those corporations is held by out-of-state public corporations and national chains. The plaintiffs claim that it can cost up to $250,000 to purchase the stock of a corporation grandfathered to hold a license.

The four plaintiffs wish to own and operate funeral establishments through the corporate form without being individually licensed. Brown is a Maryland resident who owns a cemetery in Hagerstown, Maryland, and who built a funeral home that is now operated by his son. Because Brown is not licensed under the Morticians Act, he cannot own the funeral home he built, but he would like to do so through a corporation.

Jenkins is a Maryland resident who is licensed as a mortician. He is the supervising mortician of a funeral establishment in Prince George’s County, Maryland, which was built by his family. He indicates that he would like to own his own funeral establishment through a corporation. He asserts that he cannot afford to buy the stock of a grandfathered corporation that owns a license because the going rate is “up to $250,000.”

Chisholm is a former Maryland resident who now resides in Florida. He is licensed by Maryland as a mortician and owns a licensed funeral establishment in Timoni-um, Maryland. Since relocating to Florida in 2005, he states that his business has been operated by a “subcontractor ... as the supervising mortician.” He would like to expand his funeral business in Maryland as an “ordinary business corporation.”

Manuel is a Maryland resident who, through a corporation, owns a cemetery in Waldorf, Maryland. Although she is not a licensed mortician, Manuel would like to [361]*361own and operate, through a corporation, a funeral establishment on the grounds of her cemetery because “owning a business through a corporation is the best way to operate.” She states, however, that her plans cannot include paying the “exorbitant price, as much as $250,000,” for the stock of a grandfathered corporation.

In short, each of the plaintiffs wants to engage in the practice of mortuary science through a corporation, and two wish to do so without becoming individually licensed. Therefore each is challenging Maryland’s right to bar corporations from being licensed as morticians and owning licensed funeral establishments and to require the owner of a funeral establishment to be a “licensed individual.”

The plaintiffs commenced this action against the Maryland State Board of Morticians and Funeral Directors (“Maryland”) to declare the restrictions unconstitutional and to enjoin their enforcement. In their complaint, the plaintiffs allege that they have been denied equal protection of the law, in violation of the Equal Protection Clause of the Fourteenth Amendment, because there is no rational reason why they are not permitted to own funeral homes either through a corporate form when grandfathered corporations can do so or as unlicensed individuals when surviving spouses and executors can do so. They also contend that the Morticians Act denies them the right “to earn an honest living in the occupation of their choice by imposing restrictions on the ownership of funeral homes that are not rationally related to any legitimate public purpose,” in violation of the Due Process Clause of the Fourteenth Amendment.

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Bluebook (online)
561 F.3d 357, 2009 U.S. App. LEXIS 6411, 2009 WL 793609, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-hovatter-ca4-2009.