You learn something new every day. Today, I learned that there's actually a pretty detailed procedure about how you go about getting permission to move a body to a different grave site. I had no idea. Now I do.
That's what this case is all about, anyway. Apparently, Fred Maffei's wife (Flora) died in 1982, and Fred says that Flora had told him that she wanted to be cremated and comingled with Fred's ashes when she died. Thing was, Fred was still alive at the time, so that wasn't going to happen immediately. Plus, to make matters more complicated, Flora's mom -- Albina Gabiati, who was 80 years old -- wanted her daughter buried rather than cremated.
Technically, under Section 7100 of the Health and Safety Code, since Fred was the surviving spouse, he was entitled to make the choice, regardless of what the mother-in-law wanted. But he's pretty distraught. Plus, do you really want to pick one final fight with your mother-in-law about the disposition of her daughter's body? So he agrees to bury Flora where his mother-in-law wants.
Eventually, the mother-in-law too passes away, and Fred is getting on in years himself, so 20 years later, when Fred is 80 years old, he asks that Flora be disinterred and cremated, and that her ashes be comingled with his (according to her wishes, at least according to Fred) once Fred dies. So he asks Flora's only surviving brother, Ernie, if that's okay. And Ernie isn't psyched about the idea. So Fred has to go to court. And there's a specific procedure established in Section 7526 which allows people to go to court to ask for permission to disinter or move a body. Justice Parrilli notes that there are only a couple of cases about this statute (now, of course, there are three), which basically allows the court to do whatever it thinks is right.
Anyway, Ernie and Fred fight it out, and ultimately the Court of Appeal affirms the decision below and keeps Flora where she is. There's a discussion in the opinion about the value of letting dead people rest that is pretty interesting if only because it rests upon a lot of religious and traditional assumptions that you're not generally used to hearing in judicial opinions, but basically, Justice Parrilli holds that it wasn't an abuse of discretion to leave Flora alone. And, since that's the standard, it's hard to argue with the result. But I still fell pretty sorry for Fred, who's being denied one of his (presumably very heartfelt) final wishes.
The only other passing thought that randomly popped into my head while reading the opinion -- and this is totally out of left field, since there's utterly nothing in the decision about it -- is whether the relevant statutes regarding this issue make sense, or are even constitutional. Section 7100 gave Fred (as the surviving spouse)the unilateral decision about where to initially bury Flora, but Section 7526 takes away that choice after she's in the ground. Now, I think that passes constitutional muster, since it's not strict scrutiny or anything, and there's a rational basis to distinguish between an initial decision about where to bury someone and actually digging someone up after they're in the ground.
But here's where the statutory scheme doesn't make sense to me. Section 7525 gives Fred (as the surviving spouse) the unilateral decision about digging up Flora -- regardless of Flora's brother or anyone else thinks (including a judge) -- so long as the cemetery consents. But why the hell (pardon my French) does what the cemetery wants matter?! In other words, Fred gets what he wants if he can convince (or bribe) the cemetery to agree, but Fred doesn't get what he wants if the cemetery disagrees. But why should the cemetery have any say in this thing at all?! Especially since it's hardly entirely disinterested in the outcome!
Fred doesn't make this point, but it seems to me -- and I'm admittedly just spouting off here -- that there's an equal protection violation in a statutory scheme that gives Fred the unilateral power to do what he wants with Flora (and expressly gives Fred's rights priority over Ernie's) if the cemetery consents but says that Fred lacks such power (and that Ernie may have priority over Fred) if the cemetery disagrees. What's the rational basis for that distinction? I can't think of any. And the fact that Section 7525 expressly orders the respective rights of the parties (spouse first, children second, siblings third), and does so in a manner consistent with Section 7100, makes it very difficult for Section 7526 to pass constitutional muster, which applies in the present case solely because the cemetery didn't consent.
Anyway, there's another argument for you, Fred. My free 10 minutes of legal work on behalf of your final wishes. Maybe it's a good argument. Seems like it to me. Of course, maybe I'm missing something. Though I doubt it.
Of course, Fred's probably waived this issue by not raising it already. But maybe someone else can assert it -- or the Legislature can change the statute to make it make more sense -- in another case. The cemetery should not be the one deciding which competing statutory scheme should apply.
