Appeals court takes on challenge of Oklahoma caskets law

Wednesday, January 14th 2004, 12:00 am

By: News On 6

DENVER (AP) _ A woman who sells caskets over the Internet asked a federal appeals court Wednesday to toss out an Oklahoma law that limits such sales to a handful of licensed funeral home directors.

Kim Powers of Ponca City, Okla., sued the Oklahoma Board of Embalmers and Funeral Directors because her lack of a funeral director's license bars her from doing business in Oklahoma.

U.S. District Judge Stephen Friot ruled against her in 2002, saying he could not overturn the Oklahoma Legislature's decision that ``a cartel-like scheme'' was best for the consumer.

Officials with the Oklahoma Attorney General's Office made the same argument before a three-judge panel of the 10th U.S. Circuit Court of Appeals on Wednesday. Assistant Attorney General Stefan Doughty said the judiciary has no role making law.

``We can't have a branch coming in and stepping into a legislative function,'' he said.

The Legislature was trying to protect grieving relatives from the ``overreaching'' efforts of businesses selling caskets, Doughty argued.

Chief Judge Deanell Reece Tacha responded by asking what could be considered more overreaching than limiting the sales of caskets to funeral directors. Judge Monroe McKay also pressed Doughty to define the ``precise nexus'' between the law and its protection of consumers.

``You have to defend the position that the state has a legitimate purpose in the narrow ground they're trying to protect,'' McKay said.

McKay wondered what would stop the Legislature from including the clothes worn by the deceased as the exclusive purview of funeral home directors.

``If they decide it's appropriate to includes clothes, why not?'' McKay asked.

Several states have laws similar to the Oklahoma statute, according to the Washington-based Institute for Justice. Among them are Louisiana, Virginia, Delaware, Alabama, Louisiana and Maine.

The judges also had rigorous questioning for Clark Neily, an attorney from the institute that agreed to handle Powers' appeal.

If the state can regulate lawyers and tax preparers, then why can't it regulate the sales of caskets when people are vulnerable from the loss of a loved one, Tacha asked.

``What if I don't want to be bombarded by everyone selling caskets?'' she asked.

Neily replied that the state shouldn't be allowed to arbitrarily decide who can do business and who can't, likening the law to going through the phone book and selecting three names of people who can sell caskets.

The deeper issue, Neily said, is whether there is a limit on a state's ability to enact regulations that favor special interests, such as funeral home directors.

``Every federal judge who has looked at a licensing scheme has struck it down,'' Neily said.

A decision in the case is expected in three to four months.