Federal judge upholds Oklahoma law in casket case

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Posted 8:21PM on Thursday, December 12, 2002

OKLAHOMA CITY, OKLAHOMA - A state law that prohibits anyone but licensed funeral directors from selling caskets is constitutional, a federal judge said Thursday. U.S. District Judge Stephen Friot ruled against claims that the law creates a casket cartel, driving up costs and taking away a consumer's right to search for the best deal. Ten other states have similar laws. Ponca City resident Kim Powers, who sells funeral supplies via the Internet, sued the state Board of Embalmers and Funeral Directors because she cannot do business in Oklahoma. She does not have a funeral director's license, which requires two years of college, a one-year apprenticeship and the embalming of 25 bodies. ``This is wrong,'' she said Thursday. ``All we want to do is give consumers a choice to buy their caskets at reasonable prices.'' The 87-year-old law exists to protect grieving consumers from fraud, said Terry McEnany, executive director of the funeral directors' board. State lawmakers want only trained and licensed people to handle those delicate sales. ``Most people in their lifetime will only purchase caskets maybe once or twice,'' McEnany said. ``There is an emotional component in this transaction that's missing in all other commercial transactions.'' Bills introduced during the last two sessions of the Legislature that would have changed the statute failed, he said. A state court upheld the law two years ago after a challenge by an Oklahoma City casket company. The judge's ruling, which came after a three-day November trial, focused on whether a federal court had the right to overrule the state Legislature. Friot did not offer opinions on the law itself. The 34-page ruling said the Legislature can determine ``that protection of the consumer lies in creation of a cartel-like scheme for protection of an industry. ``The choice of whether to be paternalistic ... was one for the Oklahoma Legislature to make.'' The Institute for Justice, which represented Powers, said it plans to appeal. ``The right to earn an honest living without arbitrary government interference lies at the heart of the American dream,'' said Chip Mellor, president of the Washington, D.C.-based institute. ``We will not rest until that right is vindicated.'' The institute won a lawsuit in 2000 alleging a casket monopoly in Tennessee. Similar laws have been struck down in the last few years in Mississippi and Georgia. Besides Oklahoma, states that only licensed funeral directors to sell caskets are Maine, Vermont, Delaware, Virginia, South Carolina, Alabama, Louisiana, Minnesota and Idaho, the institute said. In Oklahoma, violation of the law is a misdemeanor punishable by up to one year in jail and a $5,000 fine. Powers, who studied journalism and education in college, worked as a real estate agent and at a funeral home before launching her Internet business. She and her partner, Dennis Bridges of Knoxville, Tenn., operate Memorial Concepts Online, selling caskets in states where it is legal. They say their caskets are hundreds of dollars cheaper than ones sold in funeral homes. The number of independent casket sellers has grown across the country in the last decade because of a 1994 Federal Trade Commission regulation that prevents funeral homes from charging ``casket-handling'' fees if consumers choose to buy their casket from another business. About 490 businesses in Oklahoma handle arrangements for the 33,000 or so people who die here each year. The average Oklahoma funeral costs $5,500, not including the plot and grave. That's slightly higher than the national average of $4,700, the institute said. Oklahoma law does not require casket burials.