Law on Md. Mortuaries Has Guardian Angel at State House

By Matthew Mosk
Washington Post Staff Writer
Wednesday, January 4, 2006

HAGERSTOWN, Md. -- The corpse was in the basement, in limbo.

Betty Kephart, a Hagerstown cosmetologist, had succumbed to a virulent lung disease the night before. Her body had been loaded into a white van and driven to the funeral home that Charles S. Brown had built at a grassy hillside cemetery called Rest Haven.

There's no good time to lose a loved one, but in this case, the timing could hardly have been worse. That day, the mortician who held the license to run Brown's funeral home had quit unexpectedly, and in Maryland -- unlike in any other state -- there are only two ways to own a funeral home: Be a mortician, or possess one of 59 special ownership licenses.

Brown called the state's funeral regulators, begging for an exception. "Look, we have a body in the basement," he recalled telling them. "No," they replied. "You're closed."

It was at that moment of profound professional humiliation, Brown said, that his effort to change Maryland's funeral law became a crusade, a 10-year undertaking that will resume when the legislature reconvenes next week.

He has been thwarted at every turn. Maryland's leading mortuary owners say the law guards against an invasion of mega-corporations. But the law also has given those owners a virtual lock on the local trade, which some believe is why the state's funeral costs are among the nation's highest. A 2001 industry survey showed that a funeral in Maryland cost, on average, $166 more than it does elsewhere.

What Brown has discovered in his crusade: A bill that might seem perfectly logical to legislative leaders, the Federal Trade Commission and the state attorney general can be blocked by 59 funeral home owners and deep-sixed by a single delegate -- 77-year-old Hattie N. Harrison. Harrison's resistance demonstrates not only the Democrat's loyalty to an influential constituent in her East Baltimore district but also offers a case study in how power is wielded in Annapolis.

When Brown purchased a gently rolling cemetery property 15 years ago, he staked his future and $1 million in borrowed money on construction of a funeral home.

He knew Maryland laws allowed little room for newcomers but "figured we would go to Annapolis, explain the situation and they would see the need for some changes," Brown said. "We were naive."

The law dates to World War II, when legislators, trying to rid the state of hucksters and fly-by-night mortuaries, passed a measure requiring all funeral homes to be owned by certified morticians. An exception was made for 59 homes already open -- corporate entities that employed morticians but weren't necessarily owned by one.

Only those special-license holders could hire and fire morticians as they saw fit and pass the businesses on to children or sell them.

Brown couldn't get one of the 59 licenses, which fetch roughly $250,000. He persuaded his son Eric to go to mortuary school so he could eventually run the home. In the interim, the only way to operate was to lease it to a mortician.

The day that mortician quit, Brown had no way to quickly hire a replacement. He sent Eric to the Kepharts to deliver the grim news and offer to drive the body to another undertaker.

Jack Kephart remembers the doorbell ringing, and Eric taking a seat among mourners at the dining room table.

"He just told us, he was so very sorry, but they couldn't handle the arrangements because they didn't have the license, and the state board wouldn't give them one," Kephart said. "We just looked at each other. What a thing to happen. We were sad enough as it was."

Optimistic at First

At first, Brown had reason to be optimistic that the law would change.

In 1996, he took his cause to a state task force examining the funeral industry and quickly gained support. The attorney general's antitrust division advised that the cap was anti-competitive; the task force concluded that it wasn't needed.

His proposal was drawn up with other task force recommendations into bills. All passed in the legislature except for one: Brown's.

His delegate, John P. Donoghue (D-Washington), tried to reassure him, saying there are lots of reasons bills die. Of the 2,430 bills proposed that year, only 899 passed.

The next year, though, it died again. And the next. Five years in a row, the measure failed on committee votes.

In 2003, Del. Joanne C. Benson (D-Prince George's) took up the cause, emboldened after her sister was blocked from turning over her funeral home to a nephew. Benson asked the Federal Trade Commission to review the situation. She pointed to a legislative review showing that the number of funeral homes in Maryland had dropped from 288 in 1990 to 263 in 2000, meaning an even less competitive industry. She said the FTC confirmed her suspicions, writing that "such limitations can harm consumer welfare by stifling innovation and allowing existing firms to charge higher prices."

Benson then called Donoghue to ask why the bill kept dying. "He told me he went through hell," Benson said. "No matter what he tried, he said he ran into a brick wall." And the brick wall, Donoghue told her, was named Hattie Harrison.

It has become custom in Annapolis that every bill regulating the funeral industry must first cross Harrison's desk.

Harrison, who lives alone in a tidy East Baltimore rowhouse, joined the House in 1973 after founding the Eastside Democratic Organization, which grew into one of the city's most powerful political machines. Although she has been hobbled by ailments and now navigates the halls with a walker, Harrison remains a formidable presence.

Other delegates say that over three decades, she has mastered the formula for legislative power: become a reliable vote for House leaders.

She is so reliable that the past two House speakers not only had Harrison on their committees, but also placed her in the chair farthest to the right -- reserved for the most loyal member. The person seated there votes last. On a close call, the chairman could always signal her with a quick thumbs up or down.

In Annapolis, loyalty comes with rewards. So when an issue emerged that Harrison cared deeply about, her colleagues say, she was specially positioned to get her way. And an issue about which she cared deeply was the funeral home law.

Former delegate John A. Hurson (D-Montgomery), who chaired the health committee, said Harrison pressured House leaders to scuttle any measure dealing with caps on funeral licenses. From 1999 to 2004, the health committee voted down the bill nine times.

And not because it was bad legislation, Hurson said. "It just wasn't important enough for you to fall on your sword on."

Lobbyist Devon Doolan, hired by Brown and others, said Harrison also flexed her influence as chairman of the rules committee. In 2003, Donoghue submitted the bill late, meaning it had to go to the rules committee before being assigned to another.

"Hattie Harrison, God love her, she just sat on it all session," Doolan said.

Theories Abound

When Benson introduced the legislation again last year, she said she tried to reach out to Harrison, to understand why the delegate was blocking her proposal.

"If you could answer that question for me, I'd get up and do cartwheels," Benson said.

Lots of people have theories. Brian Chisholm, owner of Chisholm Funeral Services in Baltimore County, said he believes that Harrison has been the target of a sophisticated lobbying campaign from the largest license holders, organized as the Maryland State Funeral Directors Association.

State records show that the association's political action committee contributed $88,000 in the past four years, mostly to state lawmakers, including $4,400 to Harrison. She raised $2,200 more from individual funeral homes.

It's not a staggering amount of money, and Harrison said in an interview that it has not swayed her. What moved her, she said, were arguments made by a longtime friend, the former president of the association, Erich W. March.

In 1957, March's father opened his first funeral home in the depressed East Baltimore neighborhood where Harrison has lived her entire life.

"I've known her since I was a kid," March said in an interview.

March's father, a pillar of the community, bought two of the 59 corporate licenses to expand and to enable him to pass the business on to his children.

When efforts to eliminate Maryland's cap first surfaced, March said, he told Harrison the push to lift the cap was not coming from small, family-owned homes. Those were just a Trojan horse, he said, with the real catalyst for change being large corporations intent on capturing the Maryland market.

By eliminating the cap, he said, large companies could flood in and undercut the locals.

Harrison was persuaded.

"He explained the whole thing to me," Harrison said. "He said they needed to keep things as they were in order to keep the big folk out."

There was a time when Brown thought he had devised a way around the brick wall. He figured he would enlist a higher-caliber legislative gun than Harrison. He set his sights on Casper R. Taylor, the House speaker from neighboring Allegany County, who was facing a tough reelection bid in 2002.

"That guy's going to know me by my first name by the time this thing is over," he told himself.

Brown offered the frontage of his large cemetery property for campaign signs and worked his precinct hard. "Cas knew me by my first name by the time that campaign was over with," he said of Taylor.

Only problem: Taylor lost the election by 76 votes.

When the legislature convenes next Wednesday, it will be the first time in 10 years that Brown may not make the long morning drives to Annapolis.

He hasn't given up. To the contrary. He and others are considering another route. If the prospects in Annapolis still look bad, Brown said, they will challenge the law in court.

Last year, Chisholm applied to the Board of Morticians for a license and was denied. He now has standing to sue.

"After so many years in the legislature," Benson said, "it pains me that a courthouse is the only place left where we can expect to get any justice or any fairness."