State of Delaware v. City of Seaford
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Opinion
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
STATE OF DELAWARE, ex rel. ) KATHLEEN JENNINGS, Attorney General ) of the State of Delaware ) ) Plaintiff, ) ) v. ) C.A. No. 2022-0030-JTL ) CITY OF SEAFORD, an incorporated ) municipality of the State of Delaware, ) ) Defendant. )
OPINION
Date Submitted: May 12, 2022 Date Decided: June 29, 2022
Christian Douglas Wright & Vanessa L. Kassab, STATE OF DELAWARE DEPARTMENT OF JUSTICE, Attorneys for Plaintiff.
Daniel A. Griffith, WHITEFORD TAYLOR & PRESTON LLC, Attorney for Defendant.
LASTER, V.C. In December 2021, the City of Seaford enacted an ordinance titled “Ordinance
Relative to Abortion.” Its central provision mandates that all fetal remains resulting from
an abortion or miscarriage be cremated or interred. The requirement applies no matter the
gestational stage of the fetal remains. The State of Delaware filed suit, seeking injunctive
relief prohibiting the enforcement of the ordinance and a declaratory judgment that the
ordinance is invalid.
In a society divided over the issue of abortion, any decision that touches on that
topic carries heightened significance, and particularly so after Dobbs v. Jackson Women’s
Health Organization, 597 U.S. — (2022). The Dobbs decision overruled Roe v. Wade, 410
U.S. 113 (1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505
U.S. 833 (1992), which recognized that women have rights to bodily integrity, personal
liberty, and self-determination under the United States Constitution, that respecting those
rights is necessary to achieve the equality of women and men under the law, and that a
woman’s right to make decisions about bodily integrity, parenthood, and family therefore
must be balanced against any interests that a government might seek to address when
regulating abortion. Particularly after Casey, challenges to laws regulating abortion
frequently turned on whether the challenged regulation imposed an undue burden on or a
substantial obstacle to the ability of women to exercise their federal constitutional rights.
This case does not involve federal constitutional rights. Even before Dobbs, the
Supreme Court of the United States had held that a state statute which imposed a cremate-
or-inter requirement for fetal remains did not unduly burden the ability of women to
exercise their federal constitutional rights. See Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780 (2019). Under that controlling precedent, a challenge to the ordinance
on federal constitutional grounds could not succeed. The momentous ruling in Dobbs
therefore did not affect the course of this case.
Instead of relying on federal constitutional law, the State maintains that the
ordinance conflicts with state law, making it invalid under the settled principle that the law
of a junior sovereign (the City) cannot conflict with the law of a senior sovereign (the
State). The State’s argument does not rely on any Delaware law concerning abortion. 1
Rather, the State relies on Delaware’s overarching statutory scheme for the disposal of
human remains.
Delaware’s statutory scheme requires an official record of death before human
remains can be cremated or interred. Delaware law only authorizes the issuance of an
official record of death for fetal remains that both (i) result from a miscarriage and (ii)
1 By statute, Delaware law authorizes a physician to terminate a human pregnancy before viability. 24 Del. C. § 1790(a). Delaware law generally prohibits a physician from terminating a human pregnancy after viability, but authorizes a physician to act if, in the good faith medical judgment of the physician, the termination is necessary for the protection of the woman’s life or health or if, due to a fetal anomaly, there is not a reasonable likelihood of the fetus’s sustained survival outside the uterus without extraordinary medical measures. Id. § 1790(b). The State does not argue that the ordinance interferes with the Delaware statute authorizing physicians to perform abortions. The State also does not contend that the ordinance interferes with rights protected under the Delaware Constitution, which can exceed those provided at the federal level. See Randy J. Holland, State Constitutions: Purpose and Function, 69 Temp. L. R. 989, 1003 (1996) (“Federal Constitutional standards, however, set only a minimum level of protection. The Declaration of Rights or substantive provisions in a state’s constitution may, and often do, provide for broader or additional rights. The expansion beyond federally guaranteed individual liberties by a state constitution is attributable to a variety of reasons: differences in textual language, legislative history, pre-existing state law, structural differences, matters of particular concern, and state traditions.” (footnotes omitted)). 2 either weigh more than 350 grams or otherwise indicate a gestational stage of twenty weeks
or more. Other fetal remains cannot receive an official record of death. Consequently,
under Delaware law, fetal remains resulting from an abortion cannot be cremated or
interred. The same is true for fetal remains resulting from a miscarriage that do not satisfy
the gestational threshold. Delaware law instead requires that fetal remains falling in these
categories be incinerated.
The ordinance conflicts with this statutory scheme in that it requires that all fetal
remains resulting from an abortion or miscarriage be cremated or interred. State law does
not permit that result.
As the City concedes, a junior sovereign cannot enact a law that conflicts directly
with a law established by the senior sovereign. In Delaware’s governmental hierarchy, the
State is the senior sovereign. The City is the junior sovereign. Because the ordinance
conflicts with Delaware law, it is preempted. Summary judgment is granted in favor of the
State and against the City.
I. FACTUAL BACKGROUND
The factual record for purposes of the cross-motions for summary judgment consists
of thirty-nine stipulated facts and fifteen exhibits. Dkt. 23 (“Stipulation” or “Stip.”). No
one contends that there are any disputes of fact that would prevent the issuance of summary
judgment. The motion is therefore deemed submitted for decision on the stipulated record.
See Ct. Ch. R. 56(h).
3 A. The City
The City is an incorporated municipality of Delaware with a population of
approximately 7,957 persons. Stip. ¶ 1. The General Assembly has empowered municipal
corporations like the City to exercise sovereign authority under Delaware’s “Home Rule
Provision.” 22 Del. C. § 802. That statute provides that
[e]very municipal corporation in [Delaware] containing a population of at least 1,000 persons . . . may proceed as set forth in this chapter to amend its municipal charter and may, subject to the conditions and limitations imposed by this chapter, amend its charter so as to have and assume all powers which, under the Constitution of this State, it would be competent for the General Assembly to grant by specific enumeration and which are not denied by statute.
Id. The City has claimed the authority granted under the Home Rule Provision. Its charter
provides that the City “shall have, and may exercise, all powers which, under the
Constitution of the State of Delaware, it would be competent for this Charter specifically
to enumerate.” Seaford, Del., C. (Charter) § 4(B).
The governing body of the City is the City Council, which consists of the Mayor
and five councilmembers.
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IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
STATE OF DELAWARE, ex rel. ) KATHLEEN JENNINGS, Attorney General ) of the State of Delaware ) ) Plaintiff, ) ) v. ) C.A. No. 2022-0030-JTL ) CITY OF SEAFORD, an incorporated ) municipality of the State of Delaware, ) ) Defendant. )
OPINION
Date Submitted: May 12, 2022 Date Decided: June 29, 2022
Christian Douglas Wright & Vanessa L. Kassab, STATE OF DELAWARE DEPARTMENT OF JUSTICE, Attorneys for Plaintiff.
Daniel A. Griffith, WHITEFORD TAYLOR & PRESTON LLC, Attorney for Defendant.
LASTER, V.C. In December 2021, the City of Seaford enacted an ordinance titled “Ordinance
Relative to Abortion.” Its central provision mandates that all fetal remains resulting from
an abortion or miscarriage be cremated or interred. The requirement applies no matter the
gestational stage of the fetal remains. The State of Delaware filed suit, seeking injunctive
relief prohibiting the enforcement of the ordinance and a declaratory judgment that the
ordinance is invalid.
In a society divided over the issue of abortion, any decision that touches on that
topic carries heightened significance, and particularly so after Dobbs v. Jackson Women’s
Health Organization, 597 U.S. — (2022). The Dobbs decision overruled Roe v. Wade, 410
U.S. 113 (1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505
U.S. 833 (1992), which recognized that women have rights to bodily integrity, personal
liberty, and self-determination under the United States Constitution, that respecting those
rights is necessary to achieve the equality of women and men under the law, and that a
woman’s right to make decisions about bodily integrity, parenthood, and family therefore
must be balanced against any interests that a government might seek to address when
regulating abortion. Particularly after Casey, challenges to laws regulating abortion
frequently turned on whether the challenged regulation imposed an undue burden on or a
substantial obstacle to the ability of women to exercise their federal constitutional rights.
This case does not involve federal constitutional rights. Even before Dobbs, the
Supreme Court of the United States had held that a state statute which imposed a cremate-
or-inter requirement for fetal remains did not unduly burden the ability of women to
exercise their federal constitutional rights. See Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780 (2019). Under that controlling precedent, a challenge to the ordinance
on federal constitutional grounds could not succeed. The momentous ruling in Dobbs
therefore did not affect the course of this case.
Instead of relying on federal constitutional law, the State maintains that the
ordinance conflicts with state law, making it invalid under the settled principle that the law
of a junior sovereign (the City) cannot conflict with the law of a senior sovereign (the
State). The State’s argument does not rely on any Delaware law concerning abortion. 1
Rather, the State relies on Delaware’s overarching statutory scheme for the disposal of
human remains.
Delaware’s statutory scheme requires an official record of death before human
remains can be cremated or interred. Delaware law only authorizes the issuance of an
official record of death for fetal remains that both (i) result from a miscarriage and (ii)
1 By statute, Delaware law authorizes a physician to terminate a human pregnancy before viability. 24 Del. C. § 1790(a). Delaware law generally prohibits a physician from terminating a human pregnancy after viability, but authorizes a physician to act if, in the good faith medical judgment of the physician, the termination is necessary for the protection of the woman’s life or health or if, due to a fetal anomaly, there is not a reasonable likelihood of the fetus’s sustained survival outside the uterus without extraordinary medical measures. Id. § 1790(b). The State does not argue that the ordinance interferes with the Delaware statute authorizing physicians to perform abortions. The State also does not contend that the ordinance interferes with rights protected under the Delaware Constitution, which can exceed those provided at the federal level. See Randy J. Holland, State Constitutions: Purpose and Function, 69 Temp. L. R. 989, 1003 (1996) (“Federal Constitutional standards, however, set only a minimum level of protection. The Declaration of Rights or substantive provisions in a state’s constitution may, and often do, provide for broader or additional rights. The expansion beyond federally guaranteed individual liberties by a state constitution is attributable to a variety of reasons: differences in textual language, legislative history, pre-existing state law, structural differences, matters of particular concern, and state traditions.” (footnotes omitted)). 2 either weigh more than 350 grams or otherwise indicate a gestational stage of twenty weeks
or more. Other fetal remains cannot receive an official record of death. Consequently,
under Delaware law, fetal remains resulting from an abortion cannot be cremated or
interred. The same is true for fetal remains resulting from a miscarriage that do not satisfy
the gestational threshold. Delaware law instead requires that fetal remains falling in these
categories be incinerated.
The ordinance conflicts with this statutory scheme in that it requires that all fetal
remains resulting from an abortion or miscarriage be cremated or interred. State law does
not permit that result.
As the City concedes, a junior sovereign cannot enact a law that conflicts directly
with a law established by the senior sovereign. In Delaware’s governmental hierarchy, the
State is the senior sovereign. The City is the junior sovereign. Because the ordinance
conflicts with Delaware law, it is preempted. Summary judgment is granted in favor of the
State and against the City.
I. FACTUAL BACKGROUND
The factual record for purposes of the cross-motions for summary judgment consists
of thirty-nine stipulated facts and fifteen exhibits. Dkt. 23 (“Stipulation” or “Stip.”). No
one contends that there are any disputes of fact that would prevent the issuance of summary
judgment. The motion is therefore deemed submitted for decision on the stipulated record.
See Ct. Ch. R. 56(h).
3 A. The City
The City is an incorporated municipality of Delaware with a population of
approximately 7,957 persons. Stip. ¶ 1. The General Assembly has empowered municipal
corporations like the City to exercise sovereign authority under Delaware’s “Home Rule
Provision.” 22 Del. C. § 802. That statute provides that
[e]very municipal corporation in [Delaware] containing a population of at least 1,000 persons . . . may proceed as set forth in this chapter to amend its municipal charter and may, subject to the conditions and limitations imposed by this chapter, amend its charter so as to have and assume all powers which, under the Constitution of this State, it would be competent for the General Assembly to grant by specific enumeration and which are not denied by statute.
Id. The City has claimed the authority granted under the Home Rule Provision. Its charter
provides that the City “shall have, and may exercise, all powers which, under the
Constitution of the State of Delaware, it would be competent for this Charter specifically
to enumerate.” Seaford, Del., C. (Charter) § 4(B).
The governing body of the City is the City Council, which consists of the Mayor
and five councilmembers. The City Council holds regular meetings twice a month and
special meetings when necessary.
B. The September 28 Council Meeting
During a regular meeting of the City Council on September 28, 2021, the Mayor
presented a draft ordinance for its first reading that addressed the disposal of fetal remains
following an abortion. Stip. Ex. 2 at 4. The Mayor explained that the draft ordinance was
“being proposed in an effort to change the procedure by which fetal remains are disposed
of after [a] pregnancy is voluntarily terminated within the City of Seaford.” Id. He noted
4 that “the remains of a terminated pregnancy are currently disposed of using medical waste
protocols.” Id. He explained that the draft ordinance would require that “any remains from
a voluntary termination of pregnancy be disposed of via cremation or inter[]ment.” Id. At
the time, the Mayor observed that he did not believe that there were any medical facilities
performing abortions in the City. Id. at 5.
The City Council discussed the draft ordinance. One of the councilmembers asked
whether the City “had the authority to implement this ordinance without the approval of
the State of Delaware.” Id. at 4. The City Solicitor correctly observed that “the City is
unable to enact any law that conflicts with current Delaware Law.” Id. The City Solicitor
expressed his view that “[a]s there is no specific Delaware law that requires the woman or
facility to choose [cremation or interment] for disposal, the City of Seaford is not in conflict
with Delaware law.” Id.
C. The October 12 Meeting
On October 12, 2021, the City Council held a regular meeting at which it was
scheduled to vote on the draft ordinance. Stip. ¶ 9. Approximately four and a half hours
before the meeting, the City received a letter from the Chief Deputy Attorney General for
the State of Delaware that questioned whether the City Council had the legal authority to
enact the draft ordinance. Id. Ex. 4. The letter asked that the City Council “table this
ordinance until such time as [the Delaware Department of Justice] [is] able to assess
whether this ordinance is consistent with federal and state law.” Id. That same day, the
American Civil Liberties Union sent a letter questioning the legality of the draft ordinance.
Id. Ex. 5 at 1.
5 During its meeting on October 12, 2021, the City Council discussed the letters. The
City Council voted unanimously to table the draft ordinance until the Mayor and City
Solicitor provided additional information to the Delaware Department of Justice.
On October 14, 2021, the City Solicitor sent an email to the Chief Deputy Attorney
General outlining the City’s position on the legal authority it possessed to enact the draft
ordinance. Stip. ¶ 15. Over the ensuing weeks, the City Solicitor discussed the draft
ordinance with other attorneys “to get some ideas of how the ordinance could be improved
with some language that would explain why the City of Seaford has the authority to [enact
the draft ordinance] and to address any concerns that the State may have to address
proactively.” Id. Ex. 8 at 2.
Based on these discussions, the draft ordinance was expanded to address fetal
remains from miscarriages so that both types of fetal remains would be treated identically.
Id. The revisions also removed a provision from the draft ordinance that purported to
eliminate the requirement that “[a]n operator of a [crematorium] . . . secure a death
certificate, burial permit, transportation permit, or a cremation authorization form” before
cremating or interring fetal remains. Compare id. Ex. 1 at 11, with id. Ex. 6 at 133. A
similar provision had appeared in an Indiana statute that the Supreme Court of the United
States upheld against a federal constitutional challenge. See Box, 139 S. Ct. 1780.
D. The December 14 Meeting
On December 14, 2021, the City Council met to consider the revised version of the
draft ordinance. See Stip. Ex. 6 at 2. Five hours before the meeting, the City received a
letter from the Attorney General for the State of Delaware expressing the view that the City
6 Council lacked the legal authority to enact the draft ordinance. Id. Ex. 7 at 1; see Stip. ¶
19. The Attorney General asserted, among other things, that the draft ordinance would be
“entirely preempted by State law.” Stip. Ex. 7 at 1; see id. at 2–4.
During the meeting, before discussing the substance of the draft ordinance, the
Mayor referenced the Attorney General’s letter. The Mayor noted that if litigation arose,
then “someone ha[d] stepped up to financially support the city if the need arises at no cost
to the taxpayers.” Id. Ex. 8 at 1.
The City Solicitor described the changes to the draft ordinance. Id. at 2. He
explained that “most of the language included in this ordinance was taken from prior laws
that had been pas[sed] and upheld.” Id. The City Solicitor highlighted that the draft
ordinance had been revised to “ensure and emphasize the fact that a woman has a right to
an abortion within the State of Delaware” and to identify “[t]he State of Delaware code
provisions that allow the city to enact this type of ordinance.” Id. The City Solicitor also
pointed to language in the draft ordinance stating that “if the State legislates on this issue,
then the city is not able to enact ordinances that are contrary to that legislation.” Id. The
City Solicitor expressed his view that there was no inconsistency between the draft
ordinance and State law.
One councilmember disagreed and expressed the view that the draft ordinance, if
enacted, “would not be legal or withstand legal challenge.” Id. at 4. The councilmember
argued that any legislation like the draft ordinance “should be done at the Legislative Hall
level.” Id. Another councilmember questioned whether there had been sufficient time for
the City Solicitor to give meaningful consideration to the Attorney General’s letter. Id. The
7 City Solicitor responded that “more time would not change his position” on the validity of
the draft ordinance. Id.
After the discussion, the City Council voted to adopt the draft ordinance. Five
members were present. Three voted in favor; two voted against. Stip. ¶ 21; see id. Ex. 8 at
6. Five months later, in May 2022, the City Council would vote to amend the ordinance.
For clarity, this decision refers to the ordinance that was adopted in December 2021 as the
“Original Ordinance” and the amended version adopted in May 2022 as the “Amended
Ordinance.” Compare Stip. Ex. 10 (Original Ordinance or “Original Ord.”), with Dkt. 34
Ex. (Amended Ordinance or “Am. Ord.”).
E. The Terms Of The Original Ordinance
The express purpose of the Original Ordinance was “to establish a process for the
disposition of fetal remains within the City of Seaford.” Original Ord. 8.9.1. Its core
substantive provision stated: “Final disposition of Fetal Remains from a Miscarriage at a
Health Care Facility or surgical Abortion at an Abortion Facility must be by either: (i)
Cremation or (ii) Interment. Cremation must occur in a licensed Crematory facility.” Id. §
8.9.4 (the “Cremate-or-Inter Provision”).
The scope of the Cremate-or-Inter Provision turns on a series of important defined
terms, starting with “Fetal Remains.” The Original Ordinance defined that term broadly as
“an aborted or miscarried fetus, fetal tissue or any other similar remains that results from
the miscarriage or abortion of an Unborn Child.” Id. § 8.9.3(F). The Ordinance defines
“Unborn Child” as “an individual living member of the species, homo sapiens, throughout
8 the entire embryonic and fetal stages of the unborn child from fertilization to Full gestation
and childbirth.” Id. § 8.9.3(P).
Other important definitions include the following:
• “Abortion” means “the use of any instrument, medicine, drug, or any other similar device or substance used with intent to terminate the pregnancy of a woman known to be pregnant, with intent other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead fetus.” Id. § 8.9.3(A).
• “Cremation” means “the heating process by which a human body or body parts are reduced to bone fragments through combustion and evaporation or other similar methods.” Id. § 8.9.3(C).
• “Interment” means “the burial or entombment of fetal remains.” Id. § 8.9.3(J).
• “Miscarriage” means “the spontaneous or accidental death of an unborn child before expulsion or extraction from the Unborn Child’s mother.” Id. § 8.9.3(M).
• “Pregnant” means “the human female reproductive condition, of having a living Unborn Child within her body throughout the entire embryonic and fetal stages of the unborn child from fertilization to full Gestation and childbirth.” Id. § 8.9.3(N).
The Original Ordinance authorized the person obtaining an abortion or undergoing
a miscarriage to choose whether the Fetal Remains would be cremated or interred. Id. §
8.9.5. The operative language stated:
A pregnant woman who has a Miscarriage at a Health Care Facility or surgical Abortion in Seaford has the right to determine the following regarding the Fetal Remains: (i) whether the final disposition of the remains is by Cremation or Interment, and (ii) the location for the final disposition of the remains.
Id.
If the person obtaining the abortion or undergoing the miscarriage did not make a
choice, then the Original Ordinance provided that the health care facility where the abortion
9 or miscarriage took place must decide whether the Fetal Remains will be cremated or
interred. The operative language stated: “If a woman does not desire to exercise [that right],
. . . then the Health Care Facility or Abortion Facility shall determine whether final
disposition of Fetal Remains is by (i) Cremation or (ii) Interment, and the location of the
Fetal Remains.” Id. § 8.9.7.
The Original Ordinance also contained a provision which capped how long a patient
who obtained an abortion or suffered a miscarriage could stay at a medical facility in the
City. Id. § 8.9.13 (the “Limited Stay Provision”). The operative language stated:
Regardless of the method selected for the disposition of remains by a woman, Ambulatory Surgical Treatment Centers shall not provide beds or other accommodations for the stay of a patient to exceed twelve (12) hours duration; provided, that the length of stay may be extended for an additional twelve (12) hours in the event such stay is deemed necessary by the attending physician, the facility medical director, or the anesthesiologist for observation or recovery, but in no event shall the length of stay exceed twenty-four (24) hours.
The Original Ordinance imposed a reporting requirement which directed the person
in charge of the facility where an abortion took place to report the abortion to the Office of
Vital Statistics of the State of Delaware within ten days after the procedure. Id. § 8.9.16(A)
(the “Reporting Requirement”). The operative language stated: “Each Abortion that occurs
in Seaford shall be reported to The Office of Vital Statistics within ten (10) days after the
procedure by the person in charge of the institution in which the Abortion was performed.”
Id. Under Delaware law, the Office of Vital Statistics maintains official records of births
and deaths, including fetal deaths resulting from a miscarriage where the fetal remains
10 either weigh more than 350 grams or indicate a gestational stage of twenty weeks or more.
A different office, the Delaware Health Statistics Center, keeps records of induced
terminations of pregnancies, and those records are used solely for statistical purposes; they
are not official records of births or deaths. There does not appear to be any state office that
tracks miscarriages in which the fetal remains do not weigh more than 350 grams or
otherwise indicate a gestational stage of twenty weeks or more.
The Original Ordinance provided that “[v]iolation of this Ordinance shall be
enforced either by way of civil infraction or by way of notice and order, with associated
fines for such violation.” Id. § 8.9.20. The Original Ordinance did not provide any guidance
on what conduct would lead to punishment by civil infraction versus punishment “by way
of notice and order.” The Original Ordinance did not detail the “associated fines” for
violations.
F. The December 30 Council Meeting
On December 30, 2021, the City Council held a special meeting at which the
members considered a proposal to stay enforcement of the Original Ordinance. Stip. Ex. 9
at 2. The City Solicitor explained that the proposal to stay enforcement was “not a
reconsideration of the ordinance . . . [but] instead, it is a motion to stay enforcement of that
ordinance indefinitely, pending action by the [G]eneral [A]ssembly.” Id. Ex. 11 at 1.
All four of the members of the City Council who were present voted to stay
enforcement. One of the councilmembers expressed his view that “the [S]tate of Delaware
currently has a law in place that handles fetal remains.” Id. at 2.
11 After the meeting, the Mayor expressed his view that the stay would remain in effect
through June 2022. He noted that if the General Assembly had not enacted legislation by
that time, then he thought the City Council “will get antsy and want to move forward.”
Stip. ¶ 30. He also stressed that “this stay can be lifted at any time that [the] council
chooses.” Id.
The day after the City Council voted, the Attorney General issued a statement that
she intended to file litigation challenging the Original Ordinance. Id. ¶ 23.
G. This Litigation
On January 11, 2022, the Attorney General initiated this lawsuit by filing a
complaint against the City. Dkt. 1. The complaint contained a single count, which asserted
that the Original Ordinance was “preempted by State law.” Id. ¶ 42. The State asked the
court to issue a declaratory judgment stating that the Original Ordinance was “invalid, null,
and void in its entirety.” Id. at 21. The State also asked the court to issue a “preliminary
and permanent injunction against the City . . . prohibiting the lifting of the City’s temporary
stay of enforcement” or, in the alternative, “prohibiting the effectiveness and enforcement”
of the Original Ordinance. Id.
Concurrent with the filing of the complaint, the State moved for expedited
proceedings. Dkt. 2. On January 17, 2022, the City filed an opposition to the motion to
expedite and a motion to dismiss. Dkt. 9. The City noted that it had voluntarily stayed
enforcement of the Original Ordinance until July 1, 2022. Id. ¶ 1. The City argued that the
dispute “will be rendered moot” because of anticipated legislative action by the General
12 Assembly. Id. The City’s motion to dismiss argued that the dispute was “not ripe for
adjudication” because of the stay of enforcement. Id. ¶ 28; see id. ¶¶ 31–33.
On January 18, 2022, the court held a telephonic hearing on the motion for expedited
proceedings. Dkt. 14. After hearing argument, the court granted the State’s motion to
expedite. Id. The court explained that “an actual and ripe dispute between the parties does
exist” because “[t]he City has enacted an ordinance that it believes is lawful” and which
the “State views . . . as unlawful and preempted.” Dkt. 20 at 19. The court acknowledged
that the City’s voluntary stay of enforcement was “helpful” because it “avoids the need for
the State to seek . . . preliminary relief.” Id. at 19–20. But that undertaking did not mean
that a dispute did not exist or that the issue was not ripe. Id. at 20. The court noted that the
“possibility that the General Assembly may legislate on this area also is not enough to
warrant not scheduling this matter” because the “possibility of that coming to pass is
remote and contingent.” Id.
The parties agreed to brief cross-motions for summary judgment. On May 12, 2022,
the court held oral argument on the cross-motions. Dkt. 33.
H. The Amended Ordinance
During a meeting on May 10, 2022, two days before the hearing on the parties’
cross-motions for summary judgment, the City Council voted to amend the Original
13 Ordinance. In its place, the City Council adopted the Amended Ordinance. Of the four
councilmembers present, three voted in favor and one voted against. 2
The Amended Ordinance did not alter the Cremate-or-Inter Provision or any of the
associated definitions. Those provisions remain in place and at issue.
The Amended Ordinance modified the Limited Stay Provision to eliminate the
temporal restriction on a patient’s length of stay. The provision now states: “Regardless of
the method selected for the disposition of remains by a woman, Ambulatory Surgical
Treatment Centers shall provide beds or other accommodations for the stay of a patient
until the patient has met the facility’s criteria for discharge.” Am. Ord. § 8.9.13.
The Amended Ordinance also modified the Reporting Provision. The provision now
states: “Each Abortion that occurs in Seaford shall be reported to the Delaware Health
Statistics Center within thirty (30) days after the end of the month in which the procedure
was performed by the person in charge or a designated representative of the institution in
which the Abortion was performed, consistent with 16 Del. C. § 3133.” Id. § 8.9.16. The
Amended Ordinance thus contemplates reporting to the state office that keeps statistical
records regarding induced terminations of pregnancies, rather than the state office that
maintains official records of births and deaths.
2 Minutes of the Meeting of the City of Seaford Mayor and Council, City of Seaford 5 (May 10, 2022), https://www.seafordde.com/common/pages/DisplayFile.aspx?itemId=18571278.
14 The Amended Ordinance also revised language in a section laying out
“Requirements for Operators of Crematories.” Id. § 8.9.15. The Original Ordinance
provided a list of ways an operator could dispose of cremated Fetal Remains. See Original
Ord. § 8.9.15. The Amended Ordinance removed that list and instead instructed that the
operator could not dispose of “Cremated Fetal Remains by a means other than returning
the Cremated Fetal Remains to the responsible party in a secure container or vessel of no
less construction than that of a minimum metal material, ridge plastic material or heavy
grade corrugated material, consistent with [24 Del. Admin. C. § 3100-13.2.8].” Am. Ord.
§ 8.9.15; see Stip. Ex. 15 (redline comparing the Original Ordinance with the Amended
Ordinance).
II. THE SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if “there is no genuine issue as to any material
fact and . . . the moving party is entitled to a judgment as a matter of law.” Ct. Ch. R. 56(c).
“When opposing parties make cross motions for summary judgment, a judge should not
grant . . . summary judgment for one party unless no genuine issue of material fact exists
and that party is entitled to a judgment as a matter of law.” Wygant v. Geico Cent., 27 A.3d
553, 2011 WL 3586488, at *1 (Del. 2011) (TABLE).
Where the parties have filed cross motions for summary judgment and have not presented argument to the Court that there is an issue of fact material to the disposition of either motion, the Court shall deem the motions to be the equivalent of a stipulation for decision on the merits based on the record submitted with the motions.
Ct. Ch. R. 56(h).
15 The parties have filed cross-motions for summary judgment. Neither side argues
that there are any issues of material fact in dispute. Instead, the parties helpfully stipulated
to a set of operative facts that incorporated documents by reference.
What remains is solely a question of statutory interpretation. Summary judgment is
well-suited to resolve such matters. See Techmer Accel Hldgs., LLC v. Amer, 2010 WL
5564043, at *4 (Del. Ch. Dec. 29, 2010) (“[B]ecause the core dispute [as to one of the
counts] turns on the proper interpretation of a statutory provision, a trial would not produce
a more informed analysis of that claim.”); Korn v. New Castle Cnty., 2005 WL 396341, at
*4 n.28 (Del. Ch. Feb. 10, 2005) (“The Court is positioned to grant summary judgment as
to [three of the counts], because the [stipulation of facts] creates a record sufficient to
determine that no genuine issue exists as to any material fact and, to a large extent, the
relevant questions presented by those [c]ounts concern statutory interpretation.”).
III. LEGAL ANALYSIS
The outcome of this case turns on the doctrine of preemption. That doctrine
determines when “the law of a superior sovereign takes precedence over the laws of a lesser
sovereign; for example, a federal law preempting a state law or a state law preempting a
city or county ordinance.” A.W. Fin. Servs., S.A. v. Empire Res., Inc., 981 A.2d 1114, 1121
(Del. 2009).
16 The situations where preemption applies resist easy categorization. 3 One situation,
however, is straightforward: If a state law and a municipal ordinance directly conflict, then
the state law prevails. 4 A conflict exists “[i]f the ordinance expressly permits what a statute
expressly forbids, or vice versa.” 4th Generation Ltd. v. Bd. of Adjustment of City of
Rehoboth Beach, 1987 WL 14867, at *9 (Del. Super. July 16, 1987). 5
3 See, e.g., Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 n.6 (2000) (“We recognize, of course, that the categories of preemption are not ‘rigidly distinct.’” (quoting English v. Gen. Elec. Co., 496 U.S. 72, 79 n.5 (1990))); English, 496 U.S. at 79 n.5 (describing preemption categories as not “rigidly distinct,” observing that “field pre- emption may be understood as a species of conflict pre-emption,” and explaining that “[a] state law that falls within a pre-empted field conflicts with Congress’ intent (either express or plainly implied) to exclude state regulation”). 4 Taylor v. Smith, 115 A. 413, 414 (Del. Ch. 1921) (explaining that the “legislative power of [a] municipality . . ., expressing itself through [its] council, is inferior and subordinate to the legislative power of the state, whose creature it is”); State v. Putman, 552 A.2d 1247, 1249 (Del. Super. 1988) (“[W]here a conflict exists between a state statute and a municipal ordinance, the statute must always prevail.”). 5 A conflict also can exist if “the local ordinance . . . hinder[s] the objectives of the state statute.” Cantinca v. Fontana, 884 A.2d 468, 473–74 (Del. 2005). This branch of conflict preemption applies when “the ordinance cannot exist harmoniously with a state statute because the ordinance is diametrically in opposition to it.” 56 Am. Jur. 2d Municipal Corporations, Etc. § 306, Westlaw (database updated May 2022). Sometimes known as “obstacle preemption,” the doctrine applies when the law of a junior sovereign “stands as an obstacle to the accomplishment and execution of the full purposes and objective of” the senior sovereign. Gonzalez v. State, 207 A.3d 147, 154 (Del. 2019) (cleaned up). The conflict in this case is direct, so this decision need not consider other dimensions of conflict preemption. This decision also need not consider the doctrine of field preemption. See, e.g., id. (noting that the legislative body can impliedly preempt the field if “it is clear, despite the absence of explicit preemptive language, that Congress has intended, by legislating comprehensively, to occupy an entire field of regulation and has thereby left no room for [the junior sovereign] to supplement [the senior sovereign’s] law” (cleaned up)); Cantinca, 884 A.2d at 473 (noting that the legislative body can expressly preempt the field if “the statutory text or legislative history explicitly provides or demonstrates that the state statute 17 The Amended Ordinance is preempted because the Cremate-or-Inter Provision
conflicts directly with state law. The Cremate-or-Inter Provision requires that all fetal
remains be cremated or interred. State law only permits that result for fetal remains that (i)
result from a miscarriage and (ii) either weigh more than 350 grams or otherwise indicate
a gestational stage of twenty weeks or more. The Amended Ordinance does not allow any
fetal remains to be incinerated. State law requires that fetal remains be incinerated unless
they qualify for cremation or interment. The Amended Ordinance thus commands what
state law forbids and forbids what state law commands. As between state law and the
Amended Ordinance, state law controls.
A. Principles Of Statutory Interpretation
To determine whether a conflict exists between state law and a municipal ordinance,
the court compares the language and effect of the two provisions. That task requires that a
court proceed “much as [it] would any other [argument] about statutory meaning, looking
to the text and context of the law in question and guided by the traditional tools of statutory
interpretation.” Va. Uranium, Inc. v. Warren, 139 S. Ct. 1894, 1901 (2019).
“The Court’s goal, in construing statutes and regulations, is to ascertain and give
effect to the intent of the legislative body.” Garrison v. Red Clay Consol. Sch. Dist., 3 A.3d
264, 267 (Del. 2010). As a starting point, a court applying Delaware law “must seek to
ascertain and give effect to the intention of the Legislature as expressed in the Statute
is intended to replace or prevail over any pre-existing laws or ordinances that govern the same subject matter”).
18 itself.” Keys v. State, 337 A.2d 18, 22 (Del. 1975). “[T]he words of the statute themselves
are the first and most authoritative source of the meaning of its command.” Stoltz v. Wilm.
Tr. Co., 1992 WL 127516, at *5 (Del. Ch. June 9, 1992) (Allen, C.).
The Delaware Code states that “[w]ords and phrases shall be read with their context
and shall be construed according to the common and approved usage of the English
language.” 1 Del. C. § 303. Consistent with this provision, the Delaware Supreme Court
has instructed courts to “give the statutory words their commonly understood meanings.”
Kofron v. Amoco Chems. Corp., 441 A.2d 226, 230 (Del. 1982).
“If the statute as a whole is unambiguous and there is no reasonable doubt as to the
meaning of the words used, the court’s role is limited to an application of the literal
meaning of those words.” In re Adoption of Swanson, 623 A.2d 1095, 1096–97 (Del. 1993).
That is, “where the language is plain and admits of no more than one meaning, the duty of
interpretation does not arise, and the rules which are to aid doubtful meanings need no
discussion.” Friends of H. Fletcher Brown Mansion v. City of Wilm., 34 A.3d 1055, 1059
(Del. 2011) (cleaned up) (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917));
see Swanson, 623 A.2d at 1097 (“When statutory language is clear, unambiguous, and
consistent with other provisions of the same legislation, the court must give effect to its
intent.”).
Only when the words of a statute “do not convey with clarity a single meaning when
applied to a particular case . . . [is] a court . . . bound to interpret them.” Stoltz, 1992 WL
127516, at *5. Put another way, the court may only interpret a statute if it is ambiguous. A
statute is “ambiguous if it is susceptible of two reasonable interpretations.” Taylor v.
19 Diamond State Port Corp., 14 A.3d 536, 538 (Del. 2011). The court will “consider the
statute as a whole, rather than in parts, and [it] read[s] each section in light of all [the]
others to produce a harmonious whole.” Id. “Courts also should ascribe a purpose to the
General Assembly’s use of statutory language, and avoid construing it as surplusage, if
reasonably possible.” In re Krafft-Murphy Co., Inc., 82 A.3d 696, 702 (Del. 2013) (cleaned
up).
In this case, none of the pertinent provisions are ambiguous. Their plain meaning
controls.
B. The Conflict Between The Amended Ordinance And Delaware Law
As discussed in the Factual Background, the Cremate-or-Inter Provision in the
Amended Ordinance requires cremation or interment for fetal remains. It does not
distinguish between fetal remains that result from an abortion or a miscarriage. It also does
not distinguish between fetal remains resulting from a miscarriage based on weight or
indication of gestational stage. The Cremate-or-Inter Provision does not permit any fetal
remains to be incinerated.
As described below, Delaware law establishes an overarching statutory scheme for
the disposal of human remains. That scheme requires an official record of death before
human remains can be cremated or interred. That scheme only permits the issuance of an
official record of death for fetal remains that (i) result from a miscarriage and (ii) either
weigh more than 350 grams or otherwise indicate a gestational stage of twenty weeks or
more. Other fetal remains cannot receive an official record of death and therefore cannot
be cremated or interred. Delaware requires that other fetal remains be incinerated.
20 1. The Provisions Governing Official Records
By statute, the Delaware Department of Health and Social Services (“DHSS”) “has
charge of the registration of births, deaths, . . . and fetal deaths and shall prepare the
necessary methods, forms and blanks for obtaining and preserving such records and
insuring the faithful registration of the same throughout this State and in the central Office
of Vital Statistics.” 16 Del. C. § 3102(a). The same statute charges DHSS with “the uniform
and thorough enforcement of this chapter throughout the State and shall from time to time
promulgate any additional forms and regulations that are necessary for this purpose.” Id. §
3102(b).
a. Definitions
To navigate the provisions governing the preparation of official records of death
requires understanding a series of definitions. Those definitions distinguish between an
“Induced Termination of Pregnancy,” a “Spontaneous Fetal Death,” and a “Stillbirth.”
• “Induced Termination of Pregnancy” means “the purposeful interruption of an intrauterine pregnancy with the intention other than to produce a live-born infant or to remove a dead fetus and which does not result in a live birth.” Id. § 3101(4).
• “Spontaneous Fetal Death” means “a spontaneous death (i.e., not an induced termination of pregnancy) prior to the complete expulsion or extraction from its mother of a product of conception. The death is indicated by the fact that after such separation, the fetus does not breathe or show any other evidence of life such as beating of the heart, pulsation of the umbilical cord or definite movement of voluntary muscles.” Id. § 3101(9).
• “Stillbirth” means “any complete expulsion or extraction from its mother of a product of human conception that weighs 350 grams or more, or in the absence of weight, of 20 completed weeks gestation or more, resulting in other than a live birth and which is not an induced termination of pregnancy.” Id. § 3101(10).
21 Notably, the definitions of Stillbirth and Spontaneous Fetal Death expressly exclude an
Induced Termination of Pregnancy.
The statute uses the term “Stillborn Fetus” to refer to the fetal remains that result
from a Spontaneous Fetal Death. The statute does not have a term for the fetal remains that
result from an Induced Termination of Pregnancy. This decision uses the term “Aborted
Remains.”
Based on these definitions, only a subset of the fetal remains that can result from a
Spontaneous Fetal Death meet the statutory definition of a Stillborn Fetus. To satisfy the
statutory definition, the fetal remains must either weigh at least 350 grams or indicate a
gestational stage of twenty weeks or more (the “Gestational Threshold”).
The statute does not have a term for the fetal remains that result from a Spontaneous
Fetal Death but which do not meet the Gestational Threshold and therefore do not qualify
as a Stillborn Fetus. This decision uses the term “Pre-Threshold Remains.”
The statute contains the following additional definitions:
• “Dead Body” means “a lifeless human body or such parts of such human body from the condition of which it reasonably may be concluded that death recently occurred.” Id. § 3101(1).
• “Live Birth” means “the complete expulsion or extraction from its mother of a product of human conception, irrespective of the duration of pregnancy, which after expulsion or extraction breathes or shows any other evidence of life such as beating of the heart, pulsations of the umbilical cord or definite movement of voluntary muscles, whether or not the umbilical cord has been cut or the placenta is attached.” Id. § 3101(6).
The statute thus distinguishes between a Live Birth, on the one hand, and a Stillbirth,
Spontaneous Fetal Death, or Induced Termination of Pregnancy on the other hand.
22 b. The Official Record Requirements
Using the multi-part classification system established by the definitions, Delaware
law provides for different official records, one following a death, one following a
Spontaneous Fetal Death, and one following an Induced Termination of Pregnancy.
The first official record is a “Certificate of Death.” The operative statute states:
A certificate of death for each death which occurs in this State shall be filed with the Office of Vital Statistics, or as otherwise directed by the State Registrar, within 3 days after death . . . , and prior to final disposition of the dead body, and shall be registered if it has been completed and filed in accordance with this section.
Id. § 3123(a). The Certificate of Death thus follows a “death” and must be issued “prior to
final disposition of the dead body.” A Live Birth followed by the death of the infant would
result in the issuance of a Certificate of Death.
The second official record is a “Report of Fetal Death.” The operative statute states:
Each spontaneous fetal death of 350 grams or more, or in the absence of weight, of 20 completed week’s gestation or more . . . which occurs in this State shall be reported within 3 days after delivery to the Office of Vital Statistics by filing a report of fetal death.
Id. § 3124. A Stillbirth thus results in a Report of Fetal Death.
The statute provides that “[t]he report of fetal death is the official record of birth
and death for the fetal death.” Id. When circumstances call for the issuance of a Report of
Fetal Death, that is the official record. A Stillbirth therefore does not result in a Certificate
of Death.
Aborted Remains and Pre-Threshold Remains do not generate a Report of Fetal
Death. Only a Spontaneous Fetal Death that meets the Gestational Threshold will support
23 a Report of Fetal Death. Aborted Remains do not result in a Report of Fetal Death, because
an Induced Termination of Pregnancy is not a Spontaneous Fetal Death. Pre-Threshold
Remains do not result in a Report of Fetal Death, because Pre-Threshold Remains do not
meet the Gestational Threshold.
The third official record is a “Report of Induced Termination of Pregnancy.” The
operative statute states:
Each induced termination of pregnancy which occurs in this State, regardless of the length of gestation, shall be reported to the Delaware Health Statistics Center within the Division of Public Health by the person in charge or a designated representative of the institution or abortion facility in which the induced termination of pregnancy was performed. If the induced termination of pregnancy was performed outside an institution or abortion facility, the attending physician shall prepare and file the report. Such reporting shall occur within 30 days after the end of the month in which the induced termination of pregnancy was performed. These reports are to be used only for purposes of statistical analysis and shall not be incorporated into the permanent official records of the system of vital statistics. The reporting form shall include only those items recommended by the federal agency responsible for national vital statistics except that it shall not include any item that allows identification of patients or physicians. Furthermore, no statistical analysis shall be released which identifies the reporting institution or abortion facility.
Id. § 3133. This provision applies following an Induced Termination of Pregnancy. It is
the only provision that applies following an Induced Termination of Pregnancy.
As noted, the definition of Spontaneous Fetal Death excludes an Induced
Termination of Pregnancy. Section 3124 emphasizes the distinction by providing that
“[i]nduced terminations of pregnancy shall not be reported as spontaneous fetal deaths.”
Id. § 3124. The statute thus makes clear at multiple points that Aborted Remains cannot
result in a Report of Fetal Death. Even if the Aborted Remains satisfy the Gestational
24 Threshold, an Induced Termination of Pregnancy cannot be reported as a Spontaneous
Fetal Death and cannot give rise to a Report of Fetal Death.
2. The Provisions Governing Burial Or Cremation
State law prescribes requirements for the disposal of dead bodies. State law provides
that “[w]hen a death or fetal death occurs or a dead body is found, the body shall not be
disposed of until the burial/transit permit is completed.” 16 Del. C. § 3151 (the “Burial
Permit Requirement”). The Office of Vital Statistics will issue a burial-transit permit only
if it is presented with an official record of death. 16 Del. Admin. C. § 4204-8.0 (“A burial-
transit permit will be issued by the Office of Vital Statistics upon the compliance of the
funeral director with provisions of Section 7 and the presentation of a death certificate.”).
State law specifically addresses the requirements for cremation. Under state law,
“[n]o person shall destroy or dispose of by burning in this State the body of an individual
dead from any cause, except in a crematorium or crematory licensed for this express
purpose and under the conditions provided in §§ 3158–3164 of this title.” 16 Del. C. §
3157. The statute requires a permit for cremation:
A body may be cremated only after the preparation of a special cremation permit signed by the chief medical examiner or an assistant or deputy medical examiner. In the presentation of the cremation permit to the chief medical examiner or the chief medical examiner’s representative for signature, the permit must be accompanied by a death certificate signed by the attending physician and by a cremation authorization signed by the next- of-kin or legal representative of the deceased.
Id. § 3159(a) (the “Cremation Permit Requirement”); see id. § 3159(b) (requiring the
preparation of two copies of the cremation permit and that one of those copies “shall
25 accompany the death certificate when it is filed in the Office of Vital Statistics”). To obtain
a cremation permit, there first must be an official record of death.
Under these provisions, neither a burial permit nor a cremation permit is available
unless there is both a dead body and an official record of death. See id. §§ 3151, 3159; 16
Del. Admin. C. § 4204-8.0. Delaware law recognizes that a Stillborn Fetus is a dead body
and that a Report of Fetal Death is an official record of death. By statute, the Report of
Fetal Death must be filed with the Office of Vital Statistics “within 3 days after delivery
or as soon as possible thereafter but prior to final disposition of the dead body.” 16 Del. C.
§ 3124(1)–(2). Under the plain language of this provision, a Stillborn Fetus qualifies as a
dead body for purposes of Delaware’s statutory regime. Accord id. § 3151 (“When a death
or fetal death occurs or a dead body is found, the body shall not be disposed of until the
burial/transit permit is completed.”). By law, the Report of Fetal Death is an official record
of birth and death. See id. § 3124. A burial permit or cremation permit therefore can issue
for a Stillborn Fetus.
A Spontaneous Fetal Death that does not result in a Stillborn Fetus cannot support
the issuance of a Report of Fetal Death. However one might view Pre-Threshold Remains
for ethical, moral, or religious purposes, they do not constitute a dead body under
Delaware’s statutory regime. Pre-Threshold Remains therefore do not generate an official
record of death that can support a burial permit or cremation permit. Pre-Threshold
Remains therefore cannot be buried or cremated.
Likewise, an Induced Termination of Pregnancy that results in Aborted Remains
cannot support an official record of death, only a Report of Induced Termination of
26 Pregnancy. By statute, Reports of Induced Terminations of Pregnancy “are to be used only
for purposes of statistical analysis and shall not be incorporated into the permanent official
records of the system of vital statistics.” Id. § 3133. However one might view Aborted
Remains for ethical, moral, or religious purposes, they do not constitute a dead body under
Delaware’s statutory regime. Aborted Remains therefore cannot be buried or cremated.
3. The Provisions Requiring Incineration
An overlapping statutory regime requires the incineration of human remains that do
not qualify for burial or cremation. The General Assembly has empowered the Delaware
Department of Natural Resources and Environmental Control (“DNREC”) to promulgate
regulations concerning solid waste management. 7 Del. C. Ch. 60. DNREC has issued
regulations consistent with that grant of authority (the “Solid Waste Regulations”). 7 Del.
Admin. C. § 1301-2.0.
The Solid Waste Regulations prescribe different methods for handling and
disposing of different types of waste. One type of waste is “Pathological Waste.” The Solid
Waste Regulations define Pathological Waste as “all human tissues and anatomical
remains, including human fetal remains, which emanate from surgery, obstetrical
procedures, autopsy, and laboratory procedures.” Id. § 1301-11.3.
The Solid Waste Regulations dictate that “[a]ll pathological waste must be
incinerated, cremated or interred in accordance with 24 Del. C. Ch. 31. Other disposal
methods are not acceptable for this type of waste.” Id. § 1301-11.11.2; see id. § 1301-11.7.4
(“Waste consisting of human anatomical remains, including human fetal remains, may not
be disposed of at sanitary landfills. The remains must be incinerated, cremated or interred
27 in accordance with 24 Del. C. Ch. 31.”). The reference to Title 24 of Chapter 31 of the
Delaware Code is a cross-reference to the statutes regulating funeral services. The
incineration, cremation, or interment of Pathological Waste thus must comply with the laws
governing funerals.
Delaware law defines a “Funeral Director” as a “person engaged in the care of
human remains or in the disinfecting and preparing by embalming of human remains for
the funeral service, transportation, burial, entombment or cremation, and who shall file all
death certificates or permits as required by Chapter 31 of Title 16.” 24 Del. C. § 3101(7).
Only a licensed Funeral Director can “engage in the practice of funeral services.” Id. §
3106(a). By statute, the term “Funeral Services” means “those services rendered for the
disinfecting, embalming, burial, entombment or cremation of human remains . . . .” Id. §
3101(9).
To remain in good standing, a licensed Funeral Director cannot “illegally,
incompetently, or negligently practice[] funeral services.” Id. § 3112(a)(2). The statutes
that establish the Burial Permit Requirement and the Cremation Permit Requirements are
plainly aspects of Delaware law. See 16 Del. C. §§ 3151, 3159. Accordingly, to remain in
good standing, a licensed Funeral Director must comply with the Burial Permit
Requirement and the Cremation Permit Requirement. A licensed Funeral Director cannot
legally perform a burial or a cremation without complying with the Burial Permit
Requirement and the Cremation Permit Requirement.
Because only a licensed Funeral Director can engage in funeral services, no one can
perform a burial or cremation without complying with the Burial Permit Requirement and
28 the Cremation Permit Requirement. Both permits require an official record of death.
Aborted Remains and Pre-Threshold Remains cannot receive an official record of death.
The only option for disposing of Aborted Remains and Pre-Threshold Remains is through
incineration.
4. The Direct Conflict Between The Amended Ordinance And The State Scheme
In sum, state law prohibits the burial or cremation of Aborted Remains. State law
also prohibits the burial or cremation of Pre-Threshold Remains. State law requires the
incineration of Aborted Remains and Pre-Threshold Remains. The Amended Ordinance
directly conflicts with the state scheme in four ways.
First, the Cremate-or-Inter Provision requires that all fetal remains be cremated or
interred. It therefore mandates the burial or cremation of Aborted Remains. That
requirement is contrary to state law, which precludes the burial or cremation of Aborted
Remains.
Second, by requiring that all fetal remains be cremated or interred, the Cremate-or-
Inter Provision forbids the incineration of Aborted Remains. That requirement is contrary
to state law, which requires the incineration of Aborted Remains.
Third, by requiring that all fetal remains be cremated or interred, the Cremate-or-
Inter Provision mandates the burial or cremation of Pre-Threshold Remains. That
requirement is contrary to state law, which precludes burial or cremation of Pre-Threshold
29 Fourth, by requiring that all fetal remains be cremated or interred, the Cremate-or-
Inter Provision forbids the incineration of Pre-Threshold Remains. That requirement is
contrary to state law, which mandates the incineration of Pre-Threshold Remains.
Sometimes, determining whether a conflict exists will present a “difficult question.”
4th Generation, 1987 WL 14867, at *8. This is not one of those times.
The history of the drafting of the Amended Ordinance suggests that the City
identified these conflicts. The initial draft that was provided to City Council contained a
provision providing that “[a]n operator of a Crematory facility is not required to secure a
death certificate, burial permit, transportation permit, or a cremation authorization form to
Cremate Fetal Remains.” Stip. Ex. 1 at 11, § 8.9.14. That provision appeared in the Indiana
statute, upheld by the Supreme Court of the United States in Box, which the City Solicitor
used as a model for the ordinance. The Indiana legislature had authority to amend state law
to remove those requirements. The City did not and does not have comparable authority to
modify Delaware law. The revised draft that became the Original Ordinance dropped that
exemption, which only serves to highlight the conflict with state law. See Dkt. 35 at 79
(counsel explaining that the City was “borrowing language that had already passed
Constitutional muster,” but “afterwards saw, well, a municipality can’t do that the way a
state can”).
5. The City’s Responses
The City offers three arguments in response. None change the result.
First, the City argues that the chapter of the Delaware Code governing funerals
“does not limit burial and cremation to dead bodies,” but rather extends to all “human
30 remains.” Dkt. 32 at 17 (emphasis omitted). The City focuses on two definitions: (i) the
definition of “Burial” as the “interment of human remains,” and (ii) the definition of
“Cremation” as the “process of burning human remains to ashes.” 24 Del. C. § 3101(2)–
(3). The City reasons that any human remains, including Aborted Remains and Pre-
Threshold Remains, can be buried or cremated. But that argument fails to account for the
statutory scheme as a whole.
The City makes a similar argument under the Solid Waste Regulations. The City
points out that the Solid Waste Regulations define Pathological Waste to include “all
human tissues and anatomical remains, including human fetal remains.” See 7 Del. Admin.
C. § 1301-11.3. The City reasons that because burial and cremation involve “human
remains,” and because Pathological Waste includes “human fetal remains,” then human
fetal remains can be cremated, buried, or interred in conformity with Delaware law.
That logic works for those isolated sections, but it ignores the other requirements
for burial or cremation, including the Burial Permit Requirement and the Cremation Permit
Requirement. A burial or cremation cannot proceed without the necessary permits, and
those permits require both (i) human remains that qualify as a dead body under Delaware’s
statutory scheme and (ii) an official record of death. As explained previously, neither
Aborted Remains nor Pre-Threshold Remains can qualify as a dead body for purposes of
Delaware’s statutory regime, and neither can support the issuance of an official record of
death.
Second, the City argues that the State’s statutory scheme does not expressly provide
that Aborted Remains and Pre-Threshold Remains cannot be cremated or buried. Dkt. 29
31 at 23. It is true that no statute says that in so many words. But the statutory scheme as a
whole rules it out. Aborted Remains and Pre-Threshold Remains cannot qualify as a dead
body for purposes of Delaware’s statutory regime, nor can they support the issuance of an
official record of death, so they cannot be buried or cremated.
The City also stresses that standing alone, the Solid Waste Regulations identify
incineration, burial, and cremation as valid options for the disposal of fetal remains.
Unfortunately for the City, the Solid Waste Regulations do not stand alone. They expressly
reference the statutory provisions on funeral services, which incorporate the Burial Permit
Requirement and the Cremation Permit Requirement. Those requirements mandate that
before a burial or cremation can take place, there must be both (i) human remains that
qualify as a dead body under Delaware’s statutory scheme and (ii) an official record of
death. With both, burial or cremation is an option. Otherwise, the only option is
Third, the City contends that the Cremate-or-Inter Provision “does not necessarily
prohibit incineration” because “incineration is the equivalent of cremation.” Dkt. 32 at 18.
The City characterizes incineration as “the process of destroying any waste via flame
combustion” and argues that cremation is the “same process applied specifically to human
remains.” Id.
Neither the General Assembly nor the Solid Waste Regulations define incineration,
but it is evident that incineration is not the same thing as cremation. The Solid Waste
Regulations require Pathological Waste to be “incinerated, cremated or interred.” 7 Del.
Admin. C. § 1301-11.11.2 (emphasis added). Under standard principles of interpretation,
32 “words in a regulation should not be construed as surplusage if there is a reasonable
construction which will give them meaning, and courts must ascribe a purpose to the use
of regulatory language, if reasonably possible.” Garrison, 3 A.3d at 267 (cleaned up); see
Marx v. Gen. Revenue Corp., 568 U.S. 371, 386 (2013) (“[T]he canon against surplusage
is strongest when an interpretation would render superfluous another part of the same
statutory scheme.”). Thus, if “reasonably possible,” the court will ascribe separate
meanings to each term. See Garrison, 3 A.3d at 267.
In this case, it is easy to ascribe separate meanings to incineration and cremation.
The General Assembly has defined an “‘[i]ncerator,’ ‘incinerator structure or facility,’ and
‘waste incinerator’” to include “any structure or facility operated for the combustion
(oxidation) of solid waste, even if the by-products of the operation include useful products
such as steam and electricity.” 7 Del. C. § 6002(25). The statutory definition excludes
crematoriums. Id. § 6002(25)(a) (“‘Incinerator’ shall not include . . . Crematoriums . . . .”).
The statutory language compels the conclusion that the General Assembly did not equate
incinerators with crematoriums, nor incineration with cremation.
Regulations regarding the handling of human remains provide further insight into
the distinction. Crematoriums may cremate only “one deceased human remains” at a time,
and the “[c]omingling of cremated remains shall only occur with formal written
authorization by the legal next of kin.” 24 Del. Admin. C. § 3100-13.2.6–.7. The
regulations provide detailed rules for the packaging of cremated remains:
Following cremation, the cremated human remains must be returned to the responsible party in a secure container or vessel . . . . [and] [a]ny container, if used, or any type of cremation urn shall be clearly affixed with a label
33 clearly identifying the contents, which shall include the name of the decedent, date of passing, date of cremation, name of funeral home and name, address and phone number of the crematory of record.
Id. § 3100-13.2.8.
Incineration is different. There is no requirement that the remains be kept separate
and individually incinerated. Instead, the Solid Waste Regulations require that “[a]ll
infectious waste,” which includes the category encompassing human remains, be double-
bagged in two red bags, one inside the other. 7 Del. Admin. C. § 1301-11.8.2.1.1. The bags
must be “labeled immediately after packaging,” and the label must include, among other
things, the “name, address and business telephone number of the generator . . . [and]
‘Pathological Waste,’ if pathological waste is included in the contents.” Id. § 1301-
11.8.3.1, .3. The remains are not individually incinerated. There is no requirement to
separate the incinerated remains from the other incinerated material and place them in a
container with identifying information. Such an effort seems impossible. Cremation and
incineration are plainly distinct.
C. The Remedy
The Cremate-or-Inter Provision is preempted and invalid. The City concedes that
the remaining provisions of the Amended Ordinance are inseverable from the Cremate-or-
Inter Provision. Dkt. 32 at 23 n.42. Accordingly, the Amended Ordinance is preempted and
invalid in its entirety.
The State seeks a permanent injunction against the enforcement of the Amended
Ordinance. Dkt. 30 at 26; see also Dkt. 27 at 48. The City cannot enforce an invalid
ordinance. An injunction is therefore unnecessary.
34 The State seeks an award of reasonable costs under Court of Chancery Rule 54(d).
That rule provides that “[e]xcept when express provision therefor is made either in a statute
or in these Rules, costs shall be allowed as of course to the prevailing party unless the Court
otherwise directs.” Ct. Ch. R. 54(d). The State prevailed and is therefore entitled as a matter
of course to an award of costs.
The City counters that the State should not receive an award of costs because “[t]he
City did everything it could to avoid this litigation” and the “State should not be awarded
costs for litigation it easily could have avoided but actively sought.” Dkt. 32 at 23 n.42.
The City adopted an ordinance that conflicted with state law. The State put the City on
notice that it intended to challenge the ordinance. The City adopted the Original Ordinance
anyway. The only step the City took to avoid litigation was to stay enforcement of the
Original Ordinance. That step was helpful in that it obviated the need for the court to
determine whether some form of preliminary relief was warranted, but it did not do
anything to avoid the litigation. If the City believed that the General Assembly would enact
legislation addressing its concerns, the City should have awaited the General Assembly’s
action. Instead, the City went ahead, which caused the State to sue to enforce its statutory
scheme.
The State is entitled to an award of costs as the prevailing party. The parties shall
strive to reach agreement on the bill of costs. If the parties cannot agree, then the State may
file an appropriate motion. A dispute over costs does not delay the entry of a final judgment.
See Emerald P’rs v. Berlin, 811 A.2d 788, 791 (Del. 2001) (“[J]udgments on the merits
become final without waiting for a ruling on the issue of costs alone. Accordingly, . . . the
35 pendency of a motion for costs alone does not delay the finality of a judgment on the
merits.”); see also Immanuel Shelter, Inc. v. Bartholomew, 191 A.3d 1109, 2018 WL
3569369, at *1 (Del. 2018) (TABLE) (“It is well-settled that a pending motion for costs
does not toll the finality of a judgment.”).
IV. CONCLUSION
The Amended Ordinance is preempted and invalid. A final judgment will be entered
to that effect.
Within ten days, the parties shall submit a proposed final judgment that has been
agreed-upon as to form. If there are issues that the court must decide before final judgment
can be entered, then the parties will submit a joint letter identifying the issues and proposing
a schedule for their resolution.
Related
Cite This Page — Counsel Stack
State of Delaware v. City of Seaford, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-delaware-v-city-of-seaford-delch-2022.