May
09

Where To Bury Tamerlan Tsarnaev?

Tamerlan Tsarnaev is dead. He can’t hurt anyone again. So what’s the big deal about whether he is buried in Hamden, or in Russia, or on the dark side of the Moon?

In medieval times, courts pursued claims not just against persons who committed harm, but also against the material things that cause the harm. Strike me with a stick, and I might have brought an action against you and the stick. This later form of claim is what the law calls an in rem proceeding.

I’d like to believe that law has evolved beyond the point of thinking we need to punish inanimate objects. What could be more inanimate than the lifeless corpse of the suspected Boston Marathon bomber?

But plenty of Connecticut residents were enraged this week when a Vermont resident, Paul Douglas Keane, offered the use of one of the burial plots he owns in Hamden to the Tsarnaev family. Mr. Keane explained that this was his way of showing support for the forgotten, the despised and the oppressed. Everyone, he reminded us, is entitled to a decent burial.

Normally, I’d side with the likes of Mr. Keane. I earn my living on the dark side of the line separating the popular from the unpopular.

Several folks with family members buried at the cemetery maintained by the Mount Carmel Burial Ground Society called to express outrage. Could his burial be stopped?

Under Connecticut law, cemeteries may be maintained by associations organized and operating under state laws. These associations are free to charge subscribers for burial plots. The sale of these plots amounts to contracts that define the rights and duties of the parties.

We don’t normally buy plots for perfect strangers. We purchase the right to bury a loved one, usually with the expectation that other loved ones will be buried nearby. Anticipating these expectations, a contract will typically specify the price of the burial plot, the rights to use plot for limited purposes associated with burial, and the obligations incident to ownership of a plot for such things as upkeep and general maintenance of the property. I doubt any contract for purchase of a burial plot anticipates that the owner might decide to use his plot to bury a reviled suspected terrorist.

Mr. Keane took the position that since his contract for the plot was silent on who could be buried there, he was free to give the rights to use it to whomsoever he wished. Both the bylaws and the constitution of the Mount Carmel Burial Ground Society were silent on the topic. A spokesman for the society suggested in a public statement that there was nothing that could be done to prevent Mr. Tsarnaev’s burial in Hamden. Are Mr. Keane and the society right?

We were prepared to challenge them in court, and had prepared a request for an immediate hearing in Superior Court on behalf of several families who own burial plots. Our argument was simple: Although the contract was silent on who could be buried in the cemetery, there were certain implied promises made to other plot owners when they purchased their property. Those promises would have been violated by turning the cemetery into a controversial theme park for the despised.

 Contracts fall within the broader class of promises. One famous definition of a contract holds that a contract is a promise the law will enforce. Thus, when you pay your neighbor a fee to kill a rival, he promises to perform a lethal act in exchange for whatever you pay him. But don’t try to collect your prepaid fee if the neighbor never does the dark deed. The law will not enforce such a contract. Lawyers say it is against public policy. Similarly, minors cannot make contracts. The contracts of those who are mentally infirm may be voidable, or declared of no force. Contract law is a defense thicket of general rules and exceptions to those rules.

Walking in the shadow of every contract are unstated commitments the law is prepared to enforce. These are called implied warranties. Lawyers talk about implied warranties of fair dealing, or implied warranties of fitness for a particular use. The notion corresponds to a sense of fairness and a realization that contracting parties may not anticipate every contingency when they strike a bargain. You can’t conceal an important fact from someone else and sign a contract with one hand, while crossing your fingers and hoping not to get caught in an act of deceit with the other hand.

Plot owners in the cemetery had good grounds when they purchased grave sites to believe they were acquiring a resting place for themselves and loved ones. They also had good reason to assume that other members of the association were doing likewise. What would have provided them with notice that an out-of-state co-owner might decide to donate a grave site to the family of a notorious and hated man?

None, I say.

Whatever Mr. Keane’s motives — whether his act was inspired by a commitment to human dignity and compassion, or was the wackadoodle inspiration of a man looking for attention — fellow plot owners had no reason to expect that plots adjacent to theirs would become poker chips in a game of holier than thou.

We were at the courthouse, trying to file our papers to request an immediate hearing, when one of our clients called us to report that she’d received a call from the cemetery association. They had no plans to bury Mr. Tsarnaev in Hamden. It appears that Mr. Keane’s announcement on his Web page was all smoke, and no fire. Our case against the cemetery society and Mr. Keane evaporated.

But the controversy did leave me shaking my head and wondering whether it might not be a good idea for anyone purchasing a burial plot to insist on a better written contract when they plunk down money. Why not require that only the body of loved ones be buried in a given plot? That love can best be expressed by degrees of familial relation, or, in the alternative, by a vote of the governing body of the cemetery board.

The absence of such explicit contractual limits guarantees that the next time someone like Mr. Keane decides to use a burial plot to make a political statement, the courts will be required to decide whether such usage violated the silent, implied promises the parties made to one another when money changed hands. Leaving such things to the courts is always a gamble.

 

Related topics: Journal Register Columns
Comments (1)
Posted on May 9, 2013 at 11:33 am by poe
not on us soil
the daily cartoon in Hartford Courant was a more appropriate farewell.
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
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