THE NOT VERY LONG ARM OF THE LAW

Our family is made up mostly of educators, with a few engineers, musicians, and business people thrown in for variety. Since there aren’t any lawyers in our current family tree, it’s taken us a while to trudge through South Dakota cemetery laws and regulations to see what kind of protection or recourse they offer families.

Because we aren’t attorneys, we’ve done our best to consult with those who do have legal expertise, in particular with Richard Lang, who has been reviewing laws applicable to Restlawn. We have also checked in multiple times with the SD Attorney General’s office and with other SD government offices. But since the writing below is ours, please remember that we’ve never taken LAW 101, let alone passed a bar exam.

Also a family’s individual circumstances will have an impact on how some of these laws and regulations apply.  As they say, your mileage may vary.

With these caveats in mind, here are the questions that have made our FAQ list.

Q. What state organization is responsible for cemetery oversight in South Dakota? What authority does this group have when regulations are not followed?  

A. There doesn’t seem to be any such governmental organization. We thought that the South Dakota Board of Funeral Service might be that group, or that they at least would be able to point us in the right direction. But no. The executive secretary of the board responded to our query as follows: “Unfortunately we are not able to help you as it is outside of our jurisdiction.  We are not aware of an agency we can refer you to.”

Q. Do other states have boards or offices that are responsible for cemetery oversight?

A. Yes, there are plenty of examples. See the State of Maryland’s board

 

 or the one in Illinois.

Here is information about the boards in Indiana

and Virginia.

Other examples available upon request.

Q. Are owners of South Dakota cemeteries required to submit annual financial reports to the Secretary of State?

A. Yes, in fact they are. They are required to file the South Dakota Perpetual Care Cemetery Annual Financial Report.

Q. What happens if owners do not submit the South Dakota Perpetual Care Cemetery Annual Financial Report to the Secretary of State?

A. Apparently nothing. Not even a fine. So it isn’t surprising that SD cemetery owners seem to ignore this state requirement. The Argus Leader reported on this lack of enforcement a few years back. 

Q. What authority does a county or a municipality have in regard to a cemetery operated by a corporation? What recourse does a county or municipality have if a cemetery owner is out of compliance?  

A. Perhaps none.

Q. So if there is no SD cemetery oversight board and if counties and municipalities don’t have authority over a corporately-owned cemetery, who is responsible for dealing with complaints?

A. Many of us with concerns about Restlawn have been referred to the Consumer Protection department within the Office of the Attorney General. This department looks after a very full range of consumer issues.

Q. With this breadth of concerns to deal with for the entire state, how many attorneys are on the staff of the Consumer Protection department?

 A. One, according to a Consumer Protection supervisor.

Q. Can people who have paid for pre-need burial services find out if it is likely that their contract will be honored?

  A. This doesn’t appear to be possible.

Q. How can someone learn about the current assets held in an endowed cemetery trust in SD?

A. It seems this can be achieved only though a subpoena in the event of a lawsuit.

Q. Can people in other states learn about the assets held in an endowed cemetery trust without a lawsuit?

A. They can at least in Ohio: “Annual reports of all the assets and investments of the endowment care trust shall be prepared and maintained, and shall be available for inspection at reasonable times by any owner of interment rights in the cemetery.”  See the entire Ohio law about endowment trusts here.

We’re currently examining other states’ laws in this regard.

Q. What recourse do family members have if they had to once again purchase a vault that had already been paid for through a pre-need contract?  

A. They could sue for breach of contract.

Q. What level of failure to comply with a pre-need contract (like for markers or vaults) constitutes a breach of contract that would be taken seriously? And how far would the upkeep of a cemetery need to decline in order for these issues to be regarded as a breach of contract?   

A. This would depend on the facts at hand. But if funds are missing, that could constitute a serious breach of contract.

Q. Is a pre-need SD contract that specifies various goods and services still binding when ownership is transferred to someone else through a traditional sale? 

A. Yes. But this isn’t always achieved without a struggle. See this Tennessee case as an example.

 

Q. Where can I find the South Dakota laws about cemetery perpetual care funds?

A. Right here.

 Q. How can I read other SD cemetery laws?

A. It’s easy to find these laws. Try this page, and enter “cemetery” in the text search box.

Q. Are all of the relevant laws specifically about cemeteries?

A. Not necessarily. Some are about corporations.

Q. If I’m not happy with a SD law, what can I do?

A. If you live in SD, you can contact your state representatives to let them know how they can, well, represent you. That’s their job. (If you don’t live in SD, you can still contact these legislators, of course.)

Q. Who are my SD state representatives?

 A. You can locate them via this page.

Do you or your attorney have a different take on any of these questions? Or do you have some comments about the above? If so, please post on our Facebook site:

 

You also can send a message to restlawnalliance@gmail.com. 

 

What is the status of the trust fund?

The arrival of long-awaited markers along with maintenance to the grounds and mausoleum at Restlawn is certainly welcome news.  These are things that many have been months, and in some cases years, fighting for.

While many of us rejoice with the news of progress, there is still a great deal of anxiety about the permanent endowed care fund.  Just how much, if any, money is in that fund?  At the present time, we have no way to find out.

When we deposit money in a checking, savings, money market account or the stock market we receive regular financial reports.  Yet we are never allowed to know the status of the fund at Restlawn in which we or our loved ones invested in, sometimes years ago. 

The comprehensive endowed care fund laws of Missouri require accountability and transparency.  Evidence of this is in the link below to a webpage from a Missouri cemetery that provides annual financial reports regarding the endowed care fund to the public.  It is my hope that South Dakota legislators address this issue during the next session.  South Dakotans deserve similar transparency and accountability.  

 

One for All . . .

Maybe the biggest takeaway from the Restlawn situation is that we can all see that the whole community cares about the cemetery.

 

The community is mostly made up of people in Huron and the rest of Beadle County, of course, but it also includes those who now live all across the U.S. and even in other countries. The emails, the posts on the Facebook groups, the TV and newspaper interviews, the phone calls—everything said about the state of Restlawn lets us know that the larger group is dedicated to turning things around.

 

As many have said, though, seeing this through will be complicated. When you pull on one thread—say, the upkeep issues, the missing or damaged markers, or the condition of the mausoleum—many other threads come along, too. They include the state of the endowed trust to pay for things going forward, the interpretation of South Dakota cemetery laws, the enforcement of those laws, and so much more.

 

These issues are pretty overwhelming. Just to be done with all of this, a person can feel like declaring a complete victory for the entire situation as soon as anything positive comes along.

 

It is important to stay optimistic. If we don’t believe that Restlawn can be restored, then what’s the point, right? But it’s also important not to quit too soon—and for the community to care about everyone who has been affected, even if our own personal complaint is eventually addressed to some extent.

 

Motivation for doing so can be found on the list of those who have been buried at Restlawn. If you haven’t already looked at this list, please take a few minutes to read through it:

 

 

 

All of us with Huron and Beadle County roots will recognize one person after the other. These were our neighbors who lived down the street, the schoolteachers who put up with our antics and taught us anyway, the doctors and nurses who invested so much dedication and heart to make sure our community was healthy, and many of our former town leaders. This list also includes the names of those who were gone far too soon; you look at some of those dates, and your heart just breaks.

 

In recent weeks, many people have made a special point to say that they are going to hang in there until the whole cemetery is returned to its former state, even if their own family’s marker is delivered or some other issue looks a little better.

 

This has to be the right way.

 

 

 

 

On a snowy April day

Even though I live out of state, I have been following the news of the blizzard that is bearing down on South Dakota. I hope that everyone is sheltered from this monster spring storm.

If you find yourself with a bit of extra time that you weren't expecting, perhaps you could take some time to log onto the Find a Grave website and read through some of the names and obituaries of those interred at Restlawn.

I recently read through this list and was surprised to find the names of a couple of relatives that I did not realize were buried at Restlawn. I also saw the names of several of my old neighbors as well as parents of many of my HHS classmates. So many fond memories came back and I felt it was an honor to reacquaint myself with the lives of many people I knew during my years growing up in Huron.

Thoughts About a Community Clean UP

As word has traveled about the poor upkeep at Restlawn, the idea of a community clean-up project has been floated by quite a few folks. This sounds like a terrific notion, and if a community day like this comes together, I’ll be there bright and early with my work gloves and garden tools. Other people seem ready to bring buckets, lawn & leaf bags, and their ride-on mowers out to the cemetery.

 

As enthusiastic as I am, though, a project like this isn’t as straightforward as it sounds on the face of things. To pull this off, we’d need to deal with some potential challenges first. One is the fact that none of us owns the cemetery or even our own family members’ plots. To avoid trespassing and liability issues, we’ve been advised that getting the Restlawn Memory Gardens Inc.’s permission, probably in writing, would be a really good idea. Even if permission could be secured, somebody should be enlisted to go out to the cemetery to photograph existing damage so no one on the clean-up crew would be blamed for causing it.

 

Some problems at the cemetery are outside the reach of a community clean-up day, as we all know. The cracked window glass and the water damage at the mausoleum come to mind, as do the markers that have been scraped or had parts broken off.

 

And, of course, even if a clean-up day is an incredible success, that grass would grow back, new graves would continue to need tending as ground settles, and paint would go on peeling over time. So a long-term upkeep plan would still need to be developed.

 

But, even with all of these challenges (and some I probably haven’t thought about), a community project deserves a strong thumbs-up. 

 

The advertising for an event like this would give people hope about Restlawn. A call to the community could draw the attention of state and local leaders who have authority over how cemetery laws are applied and who have the means to create a long-range plan. And, finally, having everyone spend the day working together to make things a little better could remind us all of what Restlawn looked like before—and make for an even stronger commitment for a full restoration.

 

 So bring on the work gloves.

 

 

What Coco Can Teach Us

I finally saw Coco, the Pixar movie released last fall by Walt Disney Pictures.   It had not only the charm I expected from a Pixar/Disney movie, but also several scenes of families lovingly tending the graves of their loved ones at a local cemetery.  There was a deeper message, too:  loved ones that have passed away are still part of lives and their importance is not diminished by their passing.  I believe our group has that same desire to cherish our beloved family members who have passed away.  By tending their final resting places, we continue to honor their influence, legacy and love in our lives. 

List of issues

COMMUNICATION
o Reaching the owner has been very difficult. 
o Reaching the office staff has been considerably difficult. 
o Local officials are referring all Restlawn issues to the attorney general’s office.
o Complaints have been addressed to the attorney general’s office since at least 2016 with no ruling from that office to date. (A response has been promised.)

MARKERS & VAULTS
o Pre-paid monuments have not been delivered.
o In some cases, the person who entered a complaint about the non-delivery of a marker on behalf of a loved one has since died. Now both family members are in unmarked graves, leaving others in the family to continue the complaint.
o Pre-paid vaults have not been available, requiring repurchase.
o Elements of markers, like scrolls and dates, have not been delivered.
o Coldspring monument company has confirmed to individual families that no payment for ordered markers was sent by owner.
o Getting markers installed by another route appears to be difficult and/or expensive.
o Markers damaged by workers have not been replaced or repaired.
o Elements of markers that have been stolen have not been replaced.
o Markers that are sinking have not been repositioned.

MAUSOLEUM
o Families have had difficulty accessing the mausoleum to place flowers.
o The mausoleum is dirty and looks and smells bad.
o Retrieving cremains to relocate to another mausoleum is difficult. 

UPKEEP
o The ground above recent burials has sunken.
o Wreaths have been left to brown since Christmas.
o Other wreaths or decorations have been piled up like trash and left on top of graves.
o Grass was not planted over recent graves last summer.
o Grass has often been left to grow very high.
o Bushes have not been trimmed.
o Painting needs to be done.
o Gopher holes are prevalent and have not been filled in.

FUTURE WORRIES
o Those who have made pre-need arrangements are concerned about whether their contracts will be honored.
o The awareness that Restlawn has unpaid bills at various Huron and SD businesses (beyond markers and vaults) has led to the worry that maintenance problems will become worse.