If a Maryland court orders a body disinterred and reburied, does the State's Attorney still have to separately approve it?

Plain-English summary

A Caroline County dispute prompted this question: when a trustee began disinterring a body under a 1988 circuit court order, without also seeking the State's Attorney's sign-off, the State's Attorney halted the process and demanded his own approval first. The State's Attorney Coordinator asked the Attorney General to sort out which approvals actually apply, since two different state laws seemed to cover the same ground: one requiring the county State's Attorney's consent to disinter a body, another requiring a separate health department permit.

The opinion first revisited and overruled a 1954 AG opinion that had concluded the State's Attorney's approval requirement was implicitly wiped out once the health department permit law came along. Applying the modern rule that courts avoid finding a repeal by implication unless two statutes truly cannot be reconciled, the opinion held both approval requirements still apply, since they serve different purposes, law enforcement notice versus vital-records tracking. But the opinion then addressed the actual dispute: once a court with jurisdiction has ordered a body disinterred and reinterred, neither the State's Attorney nor the health department gets to second-guess that order by withholding its own separate approval. Requiring that would functionally let executive officials sit in appellate review over a judge's decision, which the opinion found the legislature could not have intended.

Currency note

This opinion was issued in 1991 and interpreted Article 27, §265 and §4-215(e) of the Health-General Article as they then existed. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis, including possible recodification of Article 27's criminal provisions (which were substantially reorganized into the Criminal Law Article after this opinion issued). Treat this page as historical context, not current legal advice. Verify the current statutory citations and requirements for disinterment and reinterment before relying on any specific rule described here.

Common questions

Does a Maryland State's Attorney have to approve every disinterment of a body?
According to this 1991 opinion, generally yes. The Attorney General concluded that Article 27, §265 still requires the State's Attorney's consent for the county where the body is buried, overruling a 1954 opinion that had said this requirement no longer applied.

What happens if a court already ordered the body disinterred?
The opinion concluded that once a court with jurisdiction issues an order authorizing disinterment and reinterment, the person acting under that order does not need separate approval from the State's Attorney, since neither the State's Attorney nor the health department may second-guess a court's own equitable decision.

Do you also need a health department permit to disinter a body in Maryland?
The opinion held that the Health-General Article's disinterment and reinterment permit requirement and the State's Attorney's approval requirement both remain in force at the same time, since they exist for different reasons, and one law does not implicitly cancel out the other.

Background and statutory framework

Article 27, §265 makes removing a buried body a misdemeanor unless the State's Attorney for the county (or Baltimore City) where the graveyard sits has authorized the removal, tracing back to Chapter 422 of the Laws of Maryland 1882. A separate requirement, now at §4-215(e)(1) of the Health-General Article, requires a permit from the Department of Health and Mental Hygiene before disinterment and reinterment in a different cemetery, tracing back to Chapter 312 of the Laws of Maryland 1898. A 1954 AG opinion, 39 Opinions of the Attorney General 179, had concluded the newer health-permit law implicitly repealed the older State's Attorney approval requirement, reasoning that the later law covered the same ground more comprehensively.

The opinion rejected that 1954 analysis as giving too little weight to the modern presumption against repeal by implication, citing Farmers & Merchants National Bank v. Schlossberg and Board of Education of Garrett County v. Lendo for the rule that an unspoken repeal will not be found unless the statutes are truly irreconcilable. It distinguished the genuine conflict in Schlossberg, where two laws set opposite priority rules for the same tax claims, from the disinterment statutes, which the opinion read as serving separate purposes: State's Attorney review protects against unlawful removals, while the health department permit serves DHMH's vital-records tracking function. The opinion also noted that a 1988 bill, House Bill 1118, would have eliminated the dual-approval system but failed to pass, which it read as legislative acquiescence in keeping both requirements. Turning to the court-order question, the opinion relied on the long-recognized equitable jurisdiction of courts over disinterment petitions, citing Dougherty v. Mercantile Safe Deposit & Trust Co. and the New York Court of Appeals' Yome v. Gorman for the principle that the dead should rest undisturbed absent a substantial reason, and concluded under Hardy v. State that neither the State's Attorney's statute nor the health permit statute could be read to divest a court's traditional equity power once it has acted.

Citations and references

Statutes:

• Article 27, §265, requiring State's Attorney consent to disinter a body, with removal otherwise a misdemeanor
• Article 27, § 267(c), a footnoted parallel provision requiring similar State's Attorney consent for removals from an abandoned cemetery
• §4-215(e)(1) of the Health-General Article, requiring a DHMH permit for disinterment and reinterment in a different cemetery
• HG §4-215(e), the general disinterment and reinterment permit provision discussed throughout the opinion
• Article 81, §202(d), one of two conflicting creditor-priority statutes discussed in a footnote describing the Schlossberg case
• §15-102(b) of the Commercial Law Article, the other conflicting creditor-priority statute discussed in that footnote

Cases:

• Buchholtz v. Hill, 178 Md. 280, 288, 13 A.2d 348 (1940), Maryland Court of Appeals decision on the disfavored status of repeal by implication
• Montel v. Consolidation Coal Co., 39 Md. 164, 171-172 (1873), Maryland Court of Appeals decision on when a later comprehensive law operates as a repeal of a prior one
• Farmers & Merchants National Bank v. Schlossberg, 306 Md. 48, 61, 507 A.2d 172 (1986), Maryland Court of Appeals decision holding that repeals by implication require true statutory irreconcilability
• Board of Education of Garrett County v. Lendo, 295 Md. 55, 63, 453 A.2d 1185 (1982), Maryland Court of Appeals decision on the same presumption against implied repeal
• Dougherty v. Mercantile Safe Deposit & Trust Co., 282 Md. 617, 620, 387 A.2d 244 (1978), Maryland Court of Appeals decision recognizing courts' equitable jurisdiction over disinterment
• Gallaher v. Trustees of Cherryhill Methodist Episcopal Church, 42 Md. App. 186, 399 A.2d 936 (1979), Maryland Court of Special Appeals decision cited alongside Dougherty on equitable jurisdiction over burial disputes
• Yome v. Gorman, 242 N.Y. 395, 403, 152 N.E. 126, 129 (1926), New York Court of Appeals decision (opinion by Judge Cardozo) quoted for the principle that the dead should rest undisturbed absent substantial reason
• Hardy v. State, 301 Md. 124, 131, 482 A.2d 474 (1984), Maryland Court of Appeals decision holding statutes are not construed to alter the common law by implication

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1991/Volume76_1991.pdf (this opinion appears at printed pages 371-376 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

STATE'S ATTORNEYS

Courts and Judges - Statutory Construction - Vital Records
-Authority of State's Attorney Over Disinterment of
a Body

January 30, 1991

Dario J. Broccolino, Esquire
State's Attorney Coordinator

   The State's Attorney for Caroline County, the Honorable

Christian J. Jensen, requested an opinion as to the scope of the State's
Attorney's authority to make an independent assessment whether to
authorize disinterment of a body. Subsequently, Mr. Jensen suggested
that this opinion be directed to you as State's Attorney Coordinator,
because the issue is of interest to all State's Attorneys in the State.

   For the reasons stated below, we conclude as follows:

   1. Generally, a person intending to disinter a body must obtain

the consent of the State's Attorney. A prior opinion suggesting
otherwise, 39 Opinions of the Attorney General 179 (1954), is
overruled.

   2. However, a person who disinters a body pursuant to court

order need not obtain the State's Attorney's consent.

                               I

                         Background

   The matter underlying this request arises from an order of June

16, 1988 by the Circuit Court for Caroline County permitting the trustee
of an estate to disinter and remove the body of William Burton Warren,
to be reinterred in another cemetery in Caroline County. On March 19,
1990, acting pursuant to the court order, the appointed trustee began
disinterment without obtaining approval from the State's Attorney's
Office. The State's Attorney then ordered the disinterment halted until
his authorization was obtained.

   These facts lead to the legal issue addressed by this opinion:

whether a State's Attorney is bound by a court order directing
disinterment and reinterment, or whether a State's Attorney is authorized
by law to make an independent assessment whether removal of the
buried body should be allowed.

                               II

                      Pertinent Statutes

   Two different statutes address the disinterment and reinterment

of human bodies. Under Article 27, §265 of the Maryland Code,
permission is required from the State's Attorney for the county in which
the graveyard is located, or else the removal is a misdemeanor.
Reduced to its essence, Article 27, §265 provides as follows:

        Every person ... who shall be convicted of
   removing or attempting to remove from any
   graveyard, burial ground, or vault ... from the
   State of Maryland any dead body which shall
   have been buried ... shall be deemed guilty of a
   misdemeanor ... unless such person or persons
   shall have been authorized by the State's
   Attorney for Baltimore City or for the county in
   which such graveyard, burial ground or vault
   may be situated to remove such dead body for
   the purpose of ascertaining the cause of the
   death of the person whose body has been
   removed or for the purpose of reburial.1

   The same act, disinterment and reinterment, generally requires

a different approval from the Department of Health and Mental Hygiene
("DHMH"). Under §4-215(e)(1) of the Health-General Article ("HG"
Article), a permit is necessary for disinterment and reinterment in a
different cemetery:

        A permit for disinterment and reinterment is
    required before the disinterment of a body or
    fetus if reinterment is not to be made in the
    same cemetery. The Secretary [of DHMH] or
    a health officer shall issue the permit after
    receipt of an application on the form that the
    Secretary requires.2

The difference between these two statutes has been intermittently
observed but has not been resolved by legislative action. This office
pointed out the seeming inconsistency in two similar predecessor statutes
in an opinion published in 1954. 39 Opinions of the Attorney General

179. That opinion traced the origins of both laws. The State's
     Attorney's approval dates back to Chapter 422 of the Laws of Maryland

180. DHMH approval owes its genesis to Chapter 312 of the Laws of
     Maryland 1898, which provided that a permit to disinter a body be
     obtained from the local Registrar or Deputy Registrar of Vital Statistics
     on forms prescribed by the State Board of Health. The functions of the
     Registrar and the State Board of Health are now reposed within DHMH.

     After noting that the two statutes required permits from two
     different sources for performance of the same act, the opinion concluded
     that the requirement for the State's Attorney's authorization had been
     repealed by implication. The opinion acknowledged that the law does
     not favor such repeals absent a manifest inconsistency between statutes.
     Buchholtz v. Hill, 178 Md. 280, 288, 13 A.2d 348 (1940).
     Nevertheless, the opinion pointed out, where a later enactment covers
     the whole subject of a former law and embraces new provisions plainly
     showing that it was intended as a substitute for the prior statute, it will
     operate as a repeal of the prior enactment. See Montel v. Consolidation
     Coal Co., 39 Md. 164, 171-172 (1873). The opinion reasoned that
     inasmuch as the law requiring a State's Attorney's authorization did not
     deal with the subject matter in the same comprehensive manner as the
     later law requiring a permit from what is now DHMH, the law now
     found at Article 27, §265 was implicitly repealed by the law now found
     at HG §4-215(e).

     We do not agree with the approach taken in the 1954 opinion, for
     the opinion accorded too little weight to the principle that "statutes will
     be interpreted, whenever reasonably possible, to avoid repeal by
     implication." See Farmers & Merchants National Bank v. Schlossberg,
     306 Md. 48, 61, 507 A.2d 172 (1986). In slightly different words, the
     Court of Appeals has instructed that "repeals not expressed will not be
     found unless demanded by irreconcilability or repugnancy." Board of
     Education of Garrett County v. Lendo, 295 Md. 55, 63, 453 A.2d 1185
     (1982).

     In Schlossberg, for example, the Court faced a situation in which
     two statutes purporting to set forth creditors rights in the event of an
     assignment for the benefit of creditors reached diametrically opposite
     results with respect to tax claims of the State.3 One law would have
     provided the State an absolute priority as to all tax claims in a
     distribution of an estate, while the other would have made all tax claims
     subordinate to certain other claims, including those of secured creditors,
     in a distribution. In holding that the later-enacted law favoring claims
     by secured creditors controlled over the one favoring tax claims of the
     State, the Court resolved a clear case of irreconcilable statutes: one or
     the other had to prevail.

     While a dual permit requirement for disinterment and reinterment
     of bodies might not be the tidiest regulatory system, the General
     Assembly evidently has found reason to maintain such a scheme for
     disinterments. It might have concluded that both agencies had
     independent reason to be given notice of, and to approve, the transfer of
     burial remains. On the one hand, the State's Attorney's authorization
     puts law enforcement officials on notice so that they do not treat certain
     disinterments as a crime. Assuming that the State's Attorney detects no
     wrongdoing, the approval would be granted as a matter of course. On
     the other hand, the Division of Vital Records of DHMH must be made
     aware of disinterments because one of its ministerial functions is to
     record the location of dead bodies. In short, any "conflict" between the
     statutes is more one of possible inconvenience than irreconcilability or
     mutual repugnance.

     Indeed, our conclusion that the General Assembly meant to keep
     both requirements in place because of their differing objectives is
     strengthened by the fact that the General Assembly has recently had an
     opportunity to simplify the process, yet has declined to do so. In the
     1988 Session of the General Assembly, House Bill 1118 would have
     ended the dual approval process. That bill would have eliminated the
     requirement for a State's Attorney to authorize removal of a body; it
     would have replaced that approval with a modified one under HG §4-
     215(e).4 The fact that House Bill 1118 did not pass the General
     Assembly, and that no similar measure has been proposed or passed
     since, might be read as an implicit legislative endorsement of the dual
     permit requirements.

     For these reasons, we overrule 39 Opinions of the Attorney
     General 179. We conclude that the requirement for the State's
     Attorney's approval in Article 27, §265 remains legally effective.

                                III
     
             Court Authorization of Disinterment
     

     That we now believe that the two statutory provisions discussed
     in Part II above both have effect is not, however, dispositive of your
     question. We must also consider the relationship between the Executive
     Branch approvals and a court's jurisdiction.

     The courts traditionally have had equitable jurisdiction over
     petitions for disinterment and reinterment. A substantial body of case
     law in this and other states stands for the proposition that, after burial,
     "the body is in the custody of the law and disinterment or disturbance of
     the body is subject to control of a court of equity." Dougherty v.
     Mercantile Safe Deposit & Trust Co., 282 Md. 617, 620, 387 A.2d 244
     (1978). See also Gallaher v. Trustees of Cherryhill Methodist Episcopal
     Church, 42 Md. App. 186, 399 A.2d 936 (1979). The courts
     superintend the reasons for removing a body, because "the dead are
     to rest where they have been laid unless reason of substance is brought
     forward for disturbing their repose." Dougherty, 282 Md. at 620
     (quoting Yome v. Gorman, 242 N.Y. 395, 403, 152 N.E. 126, 129
     (1926) (Cardozo, J.)).

     Just as the DHMH permit statute, HG §4-215(e), did not
     impliedly divest the State's Attorney of the power to authorize
     disinterment and reburial under Article 27, §265, neither of these
     statutes divests the court of its traditional equity power. "Statutes are
     not to be construed to alter the common-law by implication." Hardy v.
     State, 301 Md. 124, 131, 482 A.2d 474 (1984).

     In the matter that triggered Mr. Jensen's question, the Circuit
     Court for Caroline County exercised its discretion, after review of the
     equities presented on both sides, to order disinterment by the trustee.
     Under such circumstances, in our opinion, neither the local health
     officer, DHMH, nor the State's Attorney is permitted to undertake an
     independent review of the facts and circumstances involved in the case.
     To allow this review would put certain executive agencies - whether
     appointed, as the Secretary of DHMH, or elected, as the various State's
     Attorneys of each county - in the position of second-guessing the courts.
     The result would be the functional equivalent of executive appellate
     review of the trial court's decision. We do not think that the General
     Assembly intended so constitutionally suspect a result. Indeed, the
     apparent objective of the requirement for the State's Attorney's
     authorization - to ensure that disinterment is not undertaken for an
     unlawful purpose - is fully satisfied by judicial review of the preferred
     reasons for disinterment.

     Thus, we conclude that although the State's Attorneys have
     independent statutory authority to review requests for permission to
     disinter and reinter a body, in cases where a court has issued an order
     permitting these actions, the State's Attorneys do not have the discretion
     in effect to override the court's determination.

                                IV
     
                           Conclusion
     

     In summary, it is our opinion that:

     1. The requirement that one who wishes to disinter and reinter
        a body obtain a permit from DHMH, pursuant to HG §4-215, does not
        implicitly repeal the requirement that one obtain a separate approval
        from the local State's Attorney's office, pursuant to Article 27, §265.

     2. If a court with jurisdiction issues an order specifying that a
        body be disinterred and reinterred in a certain manner, a person
        authorized to act under the court order need not obtain separate
        authorization from the State's Attorney.

                                       J. Joseph Curran, Jr.
                                       Attorney General
        
                                       Jack Schwartz
                                       Chief Counsel
                                         Opinions and Advice
        

*Former Assistant Attorney General Harry J. Matz contributed
substantially to the drafting of this opinion but left the office prior to
preparation of the final version of it.

1
Article 27, § 267(c) provides for a similar consent by the State's
Attorney to permit an array of activities, including removal of a body, from an
abandoned cemetery.

2
This provision is found in the portion of the statute pertaining to the
Division of Vital Records, and that division generally handles such permits.

3
The statutes in conflict were Article 81, §202(d) and §15-102(b) of the
Commercial Law Article.

4
The bill would have also amended HG §4-215(e) to require approvals
by the local health officers in any jurisdiction where a body is to be disinterred
or reinterred upon a showing of good cause. The statute also would have been
amended to explicitly recognize that such an approval, if not timely challenged
by other notified interested parties, provides immunity to the requesting party.
In the absence of an appeal or other judicial challenge of the local officer's
decision, the bill would have allowed all persons to rely on that decision.