City of Stevenson v. Davis: More than a Property Fight

“Cemeteries are to be regarded as inviolate, and their use appropriated as a sacred place, consecrated by the elements of taste and affection, to be preserved from profanation through every mutation of human creeds, as well as from the baser conquests of Mammon.”[1]

 In 2009, after the City of Stevenson denied his application to put a cemetery on his property, James Davis and his son-in-law fired up a backhoe anyway and buried Davis’ late wife of forty-eight years just off Davis’ front porch.[2]  City attorney Parker Edmiston then sued Davis on Stevenson’s behalf in Clark County Circuit Court. Edmi

Todd Panciera, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

ston sought to force Davis to move the body from his property to a local cemetery.  On March 30, 2012, Circuit Judge Jennifer C. Clark, citing Alabama law, ordered the body removed, concluding that “[t]he owner of property within the corporate limits of a city has no unqualified right to use his property for purposes of a cemetery.”[3] Mr. Davis then filed a post judgment motion in which he argued that his family burial plot was not, in fact, a cemetery, and therefore the state statute describing the process for seeking approval to “locate a cemetery”[4] did not apply.  In support of this argument, Mr. Davis offered a statutory definition of “cemetery” under the “Burial Services, Merchandise, and Property” section of the Alabama Code, which excluded “family burial plots” from its definition.[5]  The court rejected Davis’ new argument, saying, among other things: “a family burial plot is a cemetery but is a cemetery that is not regulated by the consumer law and commercial protection statute;” and that Davis was reading the statute’s definition out of context.  Mr. Davis has been unsuccessful in his legal appeals to date.

Though Mr. Davis’ actions may seem odd, they are not abnormal.  The fact that front yard burial plots are not unheard of in Alabama is indicative of a deeper right   —or least a perceived right—that is rooted in history.  American courts have long acknowledged a reverence for the dead and the permanence of their final resting places.[6]  As one North Carolina Supreme Court opined, “Civilized countries have always recognized and protected as sacred the right to Christian burial and to an undisturbed repose of the human body when buried.”[7]Thus, in the early days when churchyards were not geographically convenient, American frontiersman resorted to interring loved ones on family burial grounds.  Surrounded by “neat white pailings”[1] or other similar enclosures, generations of Americans were buried at home on private property, their graves serving as “symbols of civilization and domestication.”[2]

Because of this well-documented tradition, Mr. Davis’ case deserves more than a cursory glance.  Alabama law addresses Davis’ claims in more depth than the Clark County Circuit Court has acknowledged.  Admittedly, the states plenary authority generally, and, more specifically, the constitutionality of Alabama Code §22-20-4 under which the circuit court decided Davis’ case, are beyond the scope of this article.  That aside, Alabama case law has acknowledged specific limits on the state’s authority to regulate family plots.

In Bryan v. City of Birmingham, the Alabama Supreme Court noted that “[b]urial places for the dead are indispensable. They may be the property of the public, devoted to the use of the public; or the owner of the freehold may devote a part of his premises to the burial of his family or friends.”[3] In another early opinion, the court addressed a landowner’s claim that his neighbor’s family burial plot was poisoning his well, noting initially that a burial ground is not a nuisance without a showing that it has caused injury.[4]  In its holding, the court refused to prevent future burials on a family plot without a showing of “special injury, irreparable by the ordinary remedies of law.”  In this sense, perhaps early Alabama law found something unique in family burial plots that called for a showing of injury above that required by typical nuisance law.

In Mr. Davis’ case, the court relied heavily on Alosi v. Jones, which noted: “the right and power of the municipality to cause removal under some conditions is unquestioned.”[5]  On the facts of that case, the court resolved the issue of whether burials should continue in “Pine Haven Cemetery,” holding: “Our own cases, therefore, as well as authority elsewhere, fully settled the doctrine that the owner of property within the corporate limits of a city has no unqualified right to dedicate the property to purposes of a public cemetery.”[6]  In fact, this is the proposition that the court in Davis cites, reaching its judgment thereby.  However, reading the Alosi opinion side by side with the Davis opinion, Mr. Davis’ argument that the city cannot regulate the grave because it is a “family burial plot” rather than a cemetery appears to be left largely unaddressed, even taking the court’s reading of §§ 22-20-4 and 8-30-1 as correct.

Given the above history setting apart an individual’s right to accord his kin a proper burial and the state’s reluctance to infringe that right, of which the above examples are but a few, Alabama courts should clarify the definition of “family burial plot” under § 22-20-4.  Mr. Davis’ case presents the perfect opportunity.

 

[1] Brown v. Maplewood Cemetery Ass’n 89 N.W. 872 (Minn. 1902).

[2] Alabama Man Fights to Keep Wife Buried in Front Yard, Associated Press, Aug. 19, 2012, http://blog.al.com/wire/2012/08/alabama_man_fights_to_keep_wif.html.

[3] City of Stevenson v. Davis, No. CV-09-133, 2012 WL 3156092 (Ala. Cir. Ct. March 30, 2012)

[4] Ala. Code. §22-20-4 (1975)

[5] Ala. Code. §8-30-1 (1975)

[6] King v. Frame, 216 N.W. 630, 633 (Iowa 1927) (“The principle of all the cases seems to be that the buried body shall remain undisturbed, and that the right and duty falls to the next of kin to see that its repose is duly protected”)(quoting Gardner v. Swan Point Cemetery Co., 40 A. 871, 878 (RI 1898)).

[7] Cabe v. Parker-Graham-Sexton, Inc., 162 S.E. 223, 229 (N.C. 1932)

[8] C. Allen Shaffer, The Standing of the Dead: Solving the Problem of Abandoned Graveyards, 32 Cap. U. L. Rev. 479, 483-84 (2003).

[9] Id.

[10] 45 So. 922 (1908).

[11] Kingsbury v. Flowers, 65 Ala. 479 (1880)(“It is quite an error to suppose, that of itself a burying ground is a nuisance to those living in its immediate vicinity. Much depends upon the mode of interment, whether it can be justly asserted that, in any event, injury will result from it.”).

[12] 174 So. 774, 776 (1937).

[13] Id. at 777(emphasis added).

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2 thoughts on “City of Stevenson v. Davis: More than a Property Fight

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  2. Rosa January 19, 2015 at 12:34 am Reply

    Hello Todd and/or anyone who might happen upon this comment. With this being an older post I am not sure that many will read this information. Yet, I must hold to hope. I attended the trial of City of Stevenson v. James E. Davis. It was a mockery of justice. I was witness to giggles and outright laughter shared by the plaintiff’s attorney and the judge. I watched as she (the judge) tapped her fingers impatiently and rolled her eyes as Mr. Davis was testifying, she even sent a text on her cell phone during court. She chatted with the plaintiff and his company in the doorway to the courtroom before and after court. I guess they had a lot to talk about since she had been the city attorney for the city of Stevenson for 11 plus years (as stated in her campaign ad from April 1984 in the local paper.. Mr. Davis, who had never been in any trouble concerning the law was not aware of this when it was first filed but had asked his attorney for a new judge because of her friendly behavior toward the plaintiff and his companions. Not until a discussion with citizens did he find out she had been the city’s attorney. He requested documentation from the city but was refused and asked his attorney to request it well before trial. Before the first day of the trial, in front of many witnesses he asked the attorney have you gotten a response from the city about the judge, it’s been a long time, they should have sent you something by now. His attorney answered that he had ask a few friends and they didn’t know so I guess she wasn’t. He then walked away from Mr. Davis and headed into the courtroom. Mr. Davis followed. He said Tim, I said I wanted a jury trial but I know I ain’t going to get one but I want a new judge. His attorney answered NO, NO Jim WE WANT this judge. My family worked on her campaign, I went to school with her son, I’VE BEEN TO HER HOUSE! Mr. Davis answered him I don’t care Tim, she’s too close to the case. I’ve told you and told you. I along with my daughter went with Mr. Davis to his attorney’s office to view video from a local news station but his attorney said it had been misplace. We also went back to help Mr. Davis explain and show to his attorney that there were sections of code dealing with the case. He pushed them away without looking at them. These documents included Sections 8-30-1 (4), 8-30-2, 11-47-40, 11-47-41, 11-47-42, 11-40-3, 27-17A-2 (11)(12)(27)(28)(68), 27-17A-46, 27-17A-49 all of which clearly prove Mr. Davis was within his rights as was Mrs. Patsy Ruth Davis to have their family burial plot on their property without a perpetual care bond being paid to the city. Even if Mr. Davis had wanted a “cemetery” which he had been instructed to apply for the city had no grounds for refusal since there was no ordinance preventing or regulating or requiring a permit enacted by the city. His attorney continued to argue that the city had taken it’s vote before it received the report from the health department. This was incorrect because the original letter approving the site was the report! Ala. see Code Section 22-20-4. If he was going to make an argument on procedure then he should have examined the copy of Roberts Rules and city meeting in which the vote was taken. It clearly states the mayor reminded everyone that they would conduct the meeting according to the procedures set forth in Robert’s Rules of Order but breeched these rules by taking the vote in the negative. This, to me, seems that it would nullify the vote completely. So Mr. Davis was taken to court for defying a vote that was null and void technically. The second day of trial ended quickly and with little from Mr. Davis’ attorney. As did all the remaining meetings of the court. During all of this we discovered that the minutes of the city meeting in which Mr. Davis first asked for permission to bury his wife and also the meeting in which the vote was taken were different in the complaint/summons than copies of the same minutes entered as evidence for the trial and on record with the city. Also the city entered into evidence the Alabama Guideline and Procedures for cemetery development which is a three page document. The document that was entered was only one page. The reason for this? Alabama Code Section 8-30-1 was contained in the Procedural Guidelines along with Section 22-20-4 (which had been copied out of a book and included as another exhibit but 8-30-1 was no where to be found ) I am not sure of the code section at this moment but I do believe altering documents and omitting evidence is illegal. I could be wrong. But it depends on how well you know the judge, not whether you are correct. Thanks for reading this and if you can share it. People need to know what is going on in our judicial system. But please note that it was Jackson County and the judge was Jenifer C. Holt. We have compiled an 8 book document and given it to Mr. Davis. It contains statement of witnesses, Codes and excerpts from the trial and exhibits as evidence of the injustice done to him and his dear wife. He is still searching for justice.

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