6/20/2012—Montana's funeral industry just keeps on giving. Back in 2007 we wrote about the state trade association trying to strip families of their rights to perform their own funerals and attempting to legislate low-cost cremation businesses out of existence. Thankfully the state legislature caught on to the undertakers' racket and refused to play along. That hasn't stopped them, according to Bill Spoja, a retired lawyer and owner of Central Montana Crematorium, Inc. Spoja is the crematory operator targeted by the 2007 legislation, and his recent letter to Montana Governor Brian Schweitzer details what looks like another case of legal harrassment by his competitors (who, lucky them, sit on the state board regulating the funeral trade).
The board suspended Spoja's operating license after he testified before the legislature in late 2011. Spoja's crime? Removing pacemakers from bodies before they go into the crematory, a universal safety precaution in the cremation business and a legal requirement in the state of Montana. Pacemakers can explode under the intense heat, injuring staff and damaging equipment. The board claims—wait for it—that since state law doesn't specifically say crematory operators can remove pacemakers, that means they can't. Even though the very same state board that suspended Spoja's license wrote this rule:
"The crematory operator is responsible for the maintenance and safe operation of equipment used in cremations."
It's another case of Circling the Hearses. Whet your appetite for absurdity; Spoja's full letter is below.
May 24, 2012
Governor Brian D. Schweitzer
Montana State Capitol Bldg.
P.O. Box 200801
Helena MT 59620-0801
Dear Governor Schweitzer:
In a letter (attached) dated April 24, 2012, written to Roberta Borland, the following statement was made by Colleen White (Department of Labor counsel):
The source of the complaint against CMC was Mr. William Spoja testifying at the Economic Affairs Interim Legislative Committee on October 6, 2011 that at his crematory, CMC, ‘we remove a pacemaker or other such implant from a body before placing it in a crematory retort . . .’ It was on this basis that a summary suspension of CMC’s license was imposed by the Board because that particular task is not defined by the legislature to be within the scope of practice of a crematory operator.
From reading this explanation, one would never know that the following facts surround this issue.
Richard Brown, Chairman of the Funeral Board, filed several complaints against Central Montana Crematorium (CMC) and its operators in March of 2004, objecting to CMC removing pacemakers, among other things. CMC was forced to defend against these complaints. Ultimately, Mr. Brown’s complaints were dismissed and CMC continued removing implants for the next eight years, never once denying and often openly stating it was doing so.
What laws controlled this matter in 2004? The very same laws which govern this issue today. They are:
Section 37-19-705 (3), MCA, provides: “A body may not be cremated with a pacemaker or other potentially hazardous implant, as defined by the board, including any toxic or explosive-type sealed implants, in place. The authorizing agent is responsible for disclosing the existence of any pacemakers or other hazardous implants.”
Section 24.147.1101 (5), ARM, as adopted by the Board of Funeral Service, provides: “The crematory operator is responsible for the maintenance and safe operation of equipment used in cremations.”
Thus, unless one insists on only protecting the business interests of the morticians of Montana, the following conclusions are inescapable:
(1) No one may cremate a human body with a pacemaker or other implant in place in said body; and
(2) The crematory operator is responsible for the safe operation of the cremation equipment. The operator is therefore responsible for the state of the bodies to be cremated, and for obvious safety reasons, this necessarily includes the legal duty to remove hazardous implants. This language is from the administrative rules which govern crematories; it has nothing to do with morticians because morticians are not required to remove implants such as pacemakers when preparing bodies for burial.
In 2007, a Screening Panel of the Board (which included Mr. Brown) voted unanimously to abandon additional complaints lodged in 2005 against CMC and its operators for removal of pacemakers, among other complaints. However, despite this history, the Funeral Board decided again (in 2012) to file repeated complaints against CMC and me. This is doubly ironic when one considers the fact that the Board prosecuted the 2005 complaints as far as it wanted to and then ultimately realized – two years later – that the complaints did not state a viable claim – so the Board dismissed the complaints with prejudice.
The current complaints were initially filed in 2004 by the Chairman of the Board, Mr. Brown. The present complaints complain of the same matters, but were filed pursuant to a new “Board rule” which allows the Board, with Mr. Brown continuing to act as chair, to initiate complaints. Notably, Section 37-1-131, MCA, was amended last session to put an end to the precise facts present here – where a board member acts to restrain trade or competition. See 37-1-131(1)(a)(ii). CMC, however, has never had a single complaint filed against it by any patron – only by competing Board members, the local morticians and their accomplices. It is also ironic that my public service, in testifying before a legislative committee, has caused this most recent round of complaints.
The actions of the Funeral Board have made it impossible for us to do our business in a quiet and decent political environment. We fully expect to and intend to follow the law religiously; we do not believe, however, that we should be bedeviled at every turn by Board members who are competitors and whose only real interests are the business interests of the morticians.
Both Mary Helen and I are in our eighties. We have been fortunate to live good and full lives. However, the continued harassment by the Funeral Board has caused us serious health concerns and severe emotional distress – all at great expense to us incurred in defending against the same baseless claims.
I request that the present complaints be dismissed, like the previous complaints. The State’s continued prosecution of the complaints is highly offensive to not only me and my family and employees but also other law-abiding citizens who have gone out of their way to express their anger and frustration at this ongoing miscarriage of justice. To prove this point, I have attached several unsolicited letters to the editor of the Lewistown News-Argus.
Obvious reasons dictate that the State needs to put an immediate end to this highly egregious and oppressive conduct, which is at once malicious, discriminatory and anti-competitive. Although I am loathe to request that you take personal cognizance of this issue, after over eight years of abuse by the Funeral Board, I do not know what else to do.
Please help us.
William A. Spoja, Jr.
President, Central Montana Crematorium, Inc.