AGO Opinion 98019
LB 953; Constitutionality of a bill which would redefine "funeral establishment"
DATE: March 16, 1998
SUBJECT: LB 953; Constitutionality of a bill which would redefine "funeral establishment"
REQUESTED BY: Merton L. Dierks, Senator Nebraska State Legislature
WRITTEN BY: Don Stenberg, Attorney General
Lynn A. Melson, Assistant Attorney General
You have requested an opinion from this office regarding the
constitutionality of LB 953. This proposed legislation would
redefine the term "funeral establishment" to mean "a place of
business devoted to the care and preparation for burial,
disposition, or cremation of dead human bodies, and for the purpose
of conducting and arranging funeral services therefrom." The
current definition, found at Neb. Rev. Stat. § 71-1301(9), provides
instead that a "funeral establishment" is "a place of
business . . . devoted to the care and preparation of dead human
bodies for burial, disposition, or cremation or to conducting or
arranging funeral services for dead human bodies." (Emphasis
added). You state that the current statute has been interpreted by
the Department of Health and Human Services Regulation and
Licensure to mean that a funeral establishment need not have a
preparation or embalming room. You also state that LB 953 would
replace the current definition with the statutory definition of
funeral establishment which existed prior to 1993.
You have asked whether the State has authority under the state
and federal constitutions to enact LB 953 if the proposed change
would restrict the creation of new businesses or expansion of
existing businesses legally operating under the current statute.
As you have asked our general opinion as to the constitutionality
of the proposed legislation, our response to your request must
necessarily also be general in nature.
The answer to your question depends on whether LB 953 is found
to be a valid exercise of the State's police power. The Nebraska
Supreme Court has held that the right to conduct a lawful business
is a constitutionally protected right. State v. Copple, 224 Neb.
672, 401 N.W.2d 141 (1987); Gillette Dairy, Inc. v. Nebraska Dairy
Products Board, 192 Neb. 89, 219 N.W.2d 214 (1974); Lincoln Dairy
Co. v. Finigan, 170 Neb. 777, 104 N.W.2d 227 (1960). However,
that right is not absolute and may be curtailed by a proper
exercise of the police power of the State to protect the public
health. State v. Hinze, 232 Neb. 550, 441 N.W.2d 593 (1989).
Generally, when a fundamental right or suspect classification is
not involved in the legislation, a legislative act is a valid
exercise of the police power if the act is "rationally related to
a legitimate state interest." State v. Champoux, 252 Neb. 769,
772, 566 N.W.2d 763, 765 (1997). Accord State ex rel. Dept. of
Health v.Jeffrey, 247 Neb. 100, 525 N.W.2d 193 (1994).
The extent of the State's power to regulate a business or
occupation was explained by the Nebraska Supreme Court in Gillette
Dairy, Inc., as follows:
Whether a business is charged with such a public interest
as to warrant its regulation is a legislative question in
which the courts ordinarily will not interfere. The
Legislature may not, however, under the guise of regulation,
impose conditions which are unreasonable, arbitrary,
discriminatory, or confiscatory. Such regulations must be
reasonable considering the nature of the business and not such
as would prevent the carrying on of the business.
192 Neb. at 96-97, 219 N.W.2d at 219-20.
In Gillette Dairy, Inc., the Nebraska Supreme Court found
unconstitutional statutes which regulated the price of dairy
products because the State failed to demonstrate that price
controls were needed to insure a wholesome product for the public.
As stated by the court, "[M]easures adopted by the Legislature to
protect the public health and secure the public safety and welfare
must have some reasonable relation to those proposed ends . . . "
Id. at 97, 219 N.W.2d at 220.
State regulation of funeral establishments has generally been
upheld. As stated by one authority, "[T]he business of operating
a mortuary, funeral home or parlor, or undertaking establishment,
or of embalming, is one of a public or quasi-public nature, closely
related to the health, safety, and general welfare of a community,
and is, therefore, a business which, under the police power, may be
subjected to reasonable regulation and control by statutes or
municipal regulations." 38 Am. Jur. 2d Funeral Directors and
Embalmers, § 3 at 75-76 (1968).
You have stated in your request letter that the proposed
amendment to the definition of "funeral establishment" is intended
to make clear that funeral establishments are places of business at
which both the preparation of dead human bodies for burial or other
disposition and the conducting and arranging of funeral services
occur. We assume, for purposes of this discussion, that the
amended statute would be so interpreted. The issue raised then
with regard to LB 953 is whether there is a rational and reasonable
relationship between the requirement that each funeral
establishment have an embalming or preparation room and the public
The purpose of the requirement is not set out in the statute
itself and we have not been provided with any information
concerning its purpose. We presume the bill's proponents believe
the requirement is needed to preserve the public's health and
safety, but are unaware of their specific concerns. It may be
somewhat helpful to add a statement of public purpose to the bill
and to articulate the specific concerns at issue in the committee
records and floor debate. However, mere statements as to public
purpose would not sustain the statute against constitutional
challenge if there cannot be demonstrated "a clear, real, and
substantial connection between the assumed purpose of the enactment
and its actual provisions." Eckstein v. City of Lincoln, 202 Neb.
741 at 744, 277 N.W.2d 91 (1979).
We are unable to predict with any certainty whether the
legislation would be upheld by our courts. Unless a rational
relationship between the amendment and the public health can be
established, LB 953 is constitutionally suspect. We do note, in
this regard, that a "branch establishment," as currently defined at
Neb. Rev. Stat. § 71-1301(4), is not required to have an embalming
room on its premises and LB 953 does not amend that definition. It
appears to us that a successful defense of LB 953 would depend not
only upon the articulation of a rational relationship between the
embalming room requirement for funeral establishments and the
public health, but also upon a valid explanation as to why the same
health concerns are not applicable to branch establishments. At
this time, we have insufficient information to address that issue.
Lynn A. Melson
Assistant Attorney General