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An Oklahoma regulation that requires the licensing of anyone who wants to sell caskets in the state should be buried six feet under, consumer groups are telling the Supreme Court this week. At its conference Friday, the Court will consider whether to grant review in Powers v. Harris, No. 04-716, a case from the 10th U.S. Circuit Court of Appeals upholding Oklahoma’s Funeral Services Licensing Act. The challenge comes after Kim Powers and Dennis Bridges began selling caskets over the Internet in 2001 through their Oklahoma corporation, Memorial Concepts Online, at prices below the funeral home market price. They sell caskets out of state and have forgone sales in Oklahoma because of the licensing law, which requires two years of college coursework and graduation from an accredited mortuary science program, two exams, and a one-year apprenticeship in a funeral home, during which the apprentice embalms at least 25 bodies. Powers and Bridges filed suit in 2001 challenging the licensing law. An Oklahoma district court upheld the law, a decision later affirmed by the 10th Circuit. In their appeal to the Supreme Court, Powers and Bridges claim the law is discriminatory under the due process and equal protection clauses and prevents them from pursuing their desired profession. Clark Neily III, a senior attorney at the Institute for Justice and counsel of record for Powers and Bridges, argues that the requirements are not well-suited to the reported aim of Oklahoma’s law, which is consumer protection. He argues instead that the regulation is a way for the state to satisfy special interests in the funeral industry and provide those interests with a monopoly. “It gives [the funeral industry] the exclusive right to sell caskets in the state,” says Neily. “They use that exclusive monopoly to inflate their casket prices to exploit consumers.” Neily says that funeral directors regularly mark up a $1,000 wholesale casket to $6,000. That, he says, is not consumer protection. The Oklahoma Board of Funeral Directors, which oversees the licensing, disagrees. “At a time of need, rather than when they can be vulnerable, [the board] wants to make sure someone won’t be taken advantage of,” says Stefan Doughty, Oklahoma assistant attorney general and counsel of record for the board. In the state’s brief, Doughty writes that although the Oklahoma statute “admits of some economic preference,” it is only in the “name of consumer protection and regulation and oversight of certain licensed professions.” The 10th Circuit, in a unanimous Aug. 23, 2004 ruling written by Chief Judge Deanell Reece Tacha, said that economic protectionism was at the heart of the Oklahoma regulation. Even so, the court held that it was a “legitimate state interest.” The court applied the rational basis review test, which requires courts to defer to state legislatures’ judgments if the law furthers a “legitimate state interest” relating to health, safety, and welfare. The threshold for proving that a state interest is legitimate is relatively low. Consequently, laws scrutinized under this review are difficult to challenge successfully. Although disagreeing with the regulation, Tacha said it was not the court’s role to strike the law. “While baseball may be the national pastime of the citizenry, dishing out special economic benefits to certain in-state industries remains the favored pastime of state and local governments,” Tacha wrote. The court said Powers and Bridges had to turn to the legislature, not the courts, to change the law. Neily, however, says the legislature is not a viable option. “The power of the funeral lobby is insurmountable,” he says, noting that three separate bills attempting to reform the law had been defeated. Neily further argues that economic protectionism cannot be a legitimate state interest. “It’s a private interest,” he says. “The law advances the interests of funeral directors, not the general public. A law that is passed to keep you out of a particular profession, that’s not a legitimate public purpose.” Neily points out a split among circuits, citing a 2002 6th Circuit case, Craigmiles v. Giles, in which the court considered nearly identical facts and struck down a Tennessee casket sales licensing law. But Doughty says that is an exaggerated claim. Several groups have filed amicus briefs in support of Powers and Bridges, including the Pacific Legal Foundation and the Cato Institute, which filed a joint brief, and the Funeral Consumers Alliance. The Funeral Consumers Alliance, citing caskets as the third-largest expense after a car and home, says the issue is “one of enormous importance to consumers.” Neily acknowledges that Bridges and Powers face an uphill battle. The Supreme Court historically has sided with the states in these types of matters, he says, especially in economic cases. OTHER CASES UP FOR REVIEWBayer AG v. Paul, No. 04-559: Whether the federal court properly remanded the case to state court based on a flawed removal appeal. � QualChoice Inc. v. Rowland, No. 04-787: Whether enforcement of reimbursement provision of employee’s benefit plan under the Employee Retirement Income Security Act was lawful. � Frye v. Tarwater, No. 04-788: Whether restricting the location of anti-abortion-right signs was a reasonable time, place, and manner regulation. � Arkansas v. Jolly, No. 04-806: When defendant claims an excessive delay between the guilt and sentencing determinations, does the Sixth Amendment right to speedy trial, rather than the due process clause, provide the proper basis for relief? � Federal Kemper Life Assurance Co. v. Berry, No. 04-830: Whether the New Mexico Court of Appeals violated the due process and full faith and credit clauses when it ruled that New Mexico law governed breach-of-contract claims for a nationwide plaintiff class. � South Carolina v. Von Dohlen, No. 04-937: Whether the South Carolina Supreme Court properly applied Strickland v. Washington in finding counsel was ineffective and finding prejudice in a case involving the determination of the defendant’s mental health. � Brown v. Sanders, No. 04-980: Is the California death penalty a “weighing” statute in which the jurors must consider a list of aggravating factors? If so, what is the effect of such a determination on the present case? This column seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for Supreme Court review or that raise significant national issues. Thomas Goldstein of Washington, D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column. His firm is counsel for the respondent in Arkansas v. Jolly , No. 04-806.

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