The Common Law Of Burial Grounds

In a lengthy opinion that explores the common law of burial grounds, a majority of the Maryland Supreme Court held that mandamus relief was not available in a legal dispute over a Bethesda plot of land that served as an historic Black burial place

This case concerns a desecrated burial ground in Montgomery County, Maryland. The ground, sometimes known as Moses Cemetery, was a historic Black burial place that contains interments of many individuals, including formerly enslaved persons and their families. After burials ceased in the mid-20th century, the land was sold and eventually developed into an apartment complex and parking lot in the late 1960s. The record suggests that, rather than respectfully disinterring and moving the remains of the deceased, the developers disturbed the ground, removed human remains haphazardly and inconsistently, destroyed grave markers, and ultimately paved a portion of the land into a parking lot. It appears likely that human remains are still interred in the land today, which is currently part of a property known as the Westwood Tower Apartments (“Westwood”).

Since the land was developed, it has changed hands multiple times. Today, it is owned by the Respondent, the Housing Opportunities Commission of Montgomery County (“HOC”). The Petitioners are three descendants of individuals who were buried in Mose  Cemetery; Reverend Olusegun Adebayo, the pastor of Macedonia Baptist Church, which is located near the burial ground; and the Bethesda African Cemetery Coalition (“BACC”), a nonprofit entity that seeks to preserve the history of Black people in the area (together, the “Coalition”).

When HOC sought to sell the land to a property developer, the Coalition filed suit in the Circuit Court for Montgomery County, seeking relief to protect the remains of the deceased and ensure that their memory was respected.

Plaintiff’s contention

According to the Coalition, a judgment issued by a court under [Maryland Code Business Regulation] § 5-505 is required whenever a burial ground is sold to be used for a purpose other than burial. Thus, the Coalition asserts that HOC must file an action under BR § 5-505 and obtain a judgment before it can sell the property containing Moses Cemetery.

Majority holding

The Coalition is not entitled to extraordinary relief in the form of mandamus to compel HOC to file a BR § 5-505 action. Courts in Maryland and in other states have developed a common law of burial places that provides the appropriate framework for resolving disputes concerning burial grounds, and so extraordinary relief is not available. Indeed, in comparison to this body of common law, BR § 5-505 is a relatively narrow statute, designed to provide an optional mechanism to make it easier to sell and repurpose certain burial grounds. HOC has no duty to file a BR § 5-505 action, and so extraordinary relief is inappropriate on that basis as well.

This case shall be remanded to the circuit court, at which time the Coalition shall be permitted to seek leave to amend its complaint.

Justice Booth (who I must has deeply impressed me with her thoughtful and well-reasoned opinions here and in the Adnan Syed case also decided today) concurred and dissented

Additionally, I agree with both the Majority and the Appellate Court that the Coalition may have remedies available under other recognized causes of action or claims. Respectfully, given that this case is moot, I am uncomfortable discussing remedies that may or may not be available in the absence of an actual case or controversy that has been decided by the circuit court and briefed on appeal. Remedies are a means of carrying out a substantive right, and they arise pursuant to a particular cause of action or claim. See Dan B. Dobbs & Caprice L. Roberts, Law of Remedies: Damages, Equity, Restitution § 1.1 (3d. ed. 2018) (“The law of judicial remedies determines the nature and scope of relief to be given to a plaintiff who has established a substantive right in court.”)

Accordingly, to the extent that the Majority opinion ventures farther than I am comfortable, I respectfully dissent. As the Majority correctly observes, the General Assembly has enacted a host of Maryland statutes that apply to ensure that human remains are undisturbed and to permit their disturbance where authorized by those statutes. Where the remains are interred in a cemetery, the General Assembly has enacted detailed regulations and protections that apply to the right of interment. See Title 5 of the Business Regulation Article of the Maryland Code. Criminal laws prevent the disinterment of human remains and the desecration of funerary objects, see Md. Code Ann. Criminal Law Article (“CR”) §§ 10-402, 10-403, 10-404. Where disinterment and reinterment are authorized, other statutes describe in detail the manner in which these acts must occur. See, e.g., CR §§ 10-402; Md. Code Ann. Real Property Article (“RP”) § 12-112.

And where human remains have been interred in a burial site on private property, in the absence of an easement or restrictive covenant, the General Assembly has codified processes for the property owner to grant access to the burial site, as well as provisions for maintenance and upkeep. See RP §§ 14-121, 14-121.1, and 14-122. Given that these provisions all require the property owner’s agreement, they do not implicate the Fifth Amendment of the United States Constitution.

I agree with the Majority that there may be equitable remedies available to an individual with standing who seeks to disinter remains that are located in a burial site on private property in order to reinter them elsewhere where the statutory provisions do not provide complete relief. I look forward to considering these and other important legal issues when they are briefed and presented to us in another case.

Justice Hotten, joined by Justice Watts, dissented

Respectfully, I dissent. I would reverse the judgment of the Appellate Court of Maryland and remand the case to that Court with instruction to affirm the judgment of the Circuit Court for Montgomery County, which concluded that the provisions of Md. Code Ann., Bus. Reg. (1992, 2015 Repl. Vol.) (“BR”) § 5-505 are mandatory and that the Housing Opportunities Commission of Montgomery County (“the Commission”), Respondent, must comply with the statute for Moses Cemetery to be sold for a purpose other than use as a burial ground. I disagree with the Majority’s conclusion that a writ of mandamus is unavailable because of the possibility of relief under the “common law of burial places” and because the provisions of BR § 5-505 are optional. Maj. Slip Op. at 39-40, 57.

The majority opinion is like a Trojan horse; it seems more benign than it actually is. The majority opinion creates an appearance of reasonableness but reaches a harsh result. The Majority starts creating the appearance of reasonableness by discussing “the common law of burial places” and stating that it disagrees with the Appellate Court that BR § 5-505 is simply a quiet title statute. See Maj. Slip Op. at 3, 4, 37-38. The Majority indicates that, unlike the Appellate Court and the Commission, it determines that BR § 5-505 is not just a quiet title statute, but that it is also a statute that facilitates sales of burial grounds by removing certain restrictions in the chain of title. See Maj. Slip Op. at 38. In reality, these are just two ways of saying the same thing, as the whole point of a quiet title action is to perfect title, eliminate adverse claims, and thus make property easier to sell.

Lack of clarity

One of the few things that the Majority makes clear is that the common law of burial places cannot prevent the sale of a burial ground. See Maj. Slip Op. at 43-44. Stopping the Commission from selling Moses Cemetery without court approval was the whole point of Petitioners’ filing this action in the first place. The Majority’s foreclosure of Petitioners’ ability to stop the sale of Moses Cemetery begs the questions of what kind of relief the Majority expects Petitioners to seek on remand based on the common law of burial places in the United States. Although the Majority advises that “[c]ourts have enjoined desecration of burial grounds” and that “interested parties need not wait for a burial ground to be the subject of a contract for sale to seek equitable relief in connection with an alleged desecration of the burial ground[,]” the Majority leaves unclear what relief would consist of on remand.

(Mike Frisch)