Litigation Update: Oklahoma Caskets

March 1, 2002

March 2002

Litigation Update: Oklahoma Caskets

“The [Defendants’] Motion to Dismiss. . . is denied.”

Seems pretty clear, doesn’t it?

Well, not if you’re a government lawyer representing monopoly-protecting funeral board members in Oklahoma.

Last spring, the State filed a motion to dismiss the Institute’s challenge to Oklahoma’s restrictive casket sales laws, arguing not only that the statute was constitutional on its face, but that a prior state court decision meant that our clients, Kim Powers and Dennis Bridges, shouldn’t even get a day in court. Judge Stephen Friot rejected those spurious arguments, concluding that this case raises serious constitutional issues not foreclosed by any prior decision. Still, the funeral board members filed a motion for clarification, suggesting that maybe the judge hadn’t really meant what he said.

Judge Friot lost no time in “clarifying” that the State’s motion to dismiss was utterly without merit, and he set a status conference to speed the case along toward final resolution. We have already lined up two expert witnesses who will testify that Oklahoma’s licensing restrictions are not rationally related to any public purpose, and Kim and Dennis are completing a survey that will show how much the casket sales monopoly costs the citizens of Oklahoma.

Just like in Tennessee, we are going to demonstrate that Oklahoma’s “public safety” and “consumer protection” arguments are without merit. And if the Sixth Circuit Court of Appeals affirms our Tennessee victory (oral argument is set for April 24), even our opposing counsel might find it difficult to defend Oklahoma’s rank protectionism in good conscience.

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