PAUL F. SILVA vs. CITY OF FALL RIVER & another. [Note 1]

CYPHER, J. Paul F. Silva, a licensed funeral director, filed a complaint under G. L. c. 231A against the city of Fall River and its board of health (collectively, Fall River) alleging that the twenty-dollar burial permit fee charged by Fall River is an illegal tax and seeking declaratory judgment, injunctive relief, and damages. The parties filed cross motions for summary judgment and a Superior Court judge entered judgment in favor of Fall River, concluding that the burial permit charge was a valid regulatory fee and not an unlawful tax. Silva appeals. We think that the summary judgment record establishes that the burial permit charge exhibits more characteristics of a tax than of a fee.

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Standard of review. " 'The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.' Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). For a grant of summary judgment to be upheld, the moving party must establish that there are no genuine issues of material fact, and that the nonmoving party has no reasonable expectation of proving an essential element of its case." Miller v. Mooney, 431 Mass. 57, 60 (2000).

Background. The parties are in agreement as to the following. Disposition of human remains is a regulated activity. Every dead body of a human being dying within the Commonwealth must be buried, entombed, or cremated within a reasonable period of time after death. G. L. c. 114, § 43M. Such interment requires, among other things, the issuance of a burial permit. G. L. c. 114, § 45. Failure to comply with the relevant laws can result in criminal prosecution. G. L. c. 114, § 43N. See Commonwealth v. Goodrich, 13 Allen 546, 548-549 (1866); Commonwealth v. Gallison, 384 Mass. 184, 185 (1981).

Before a dead body may be interred, a burial permit must be obtained from the local board of health or the town clerk of the town where the person died. G. L. c. 114, § 45. [Note 2] To obtain the permit, the applicant must present a valid death certificate, [Note 3] ibid., and, in Fall River, pay a twenty-dollar fee. [Note 4]

Once issued, the burial permit must be presented to the person in charge of the cemetery or crematory where the permit holder

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seeks to dispose of the body. G. L. c. 114, § 47. That person is required to endorse the fact of burial, removal, or cremation on a coupon that accompanies the burial permit. Ibid. The completed coupon is returned to the local board of health issuing the burial permit. Ibid. The statutory scheme serves to ensure the proper disposition of human remains.

On July 1, 1995, Fall River began charging a fee of ten dollars for the burial permit. In 2000, Fall River increased the fee to twenty dollars. The fees are deposited into a general account of the city of Fall River.

Discussion. Under the Massachusetts Constitution, municipalities do not have an independent power of taxation; however, they may impose fees. [Note 5] Greater Franklin Developers Assn. v. Franklin, 49 Mass. App. Ct. 500, 502 (2000). "Fees imposed by a governmental entity tend to fall into one of two principal categories: user fees, based on the rights of the entity as proprietor of the instrumentalities used, Opinion of the Justices, 250 Mass. 591, 597 (1924), or regulatory fees (including licensing and inspection fees), founded on the police power to regulate particular businesses or activities, id. at 602." Emerson College v. Boston, 391 Mass. 415, 424 (1984). [Note 6]

The disposal of human remains involves the public health

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and implicates the police power. Wyeth v. Board of Health of Cambridge, 200 Mass. 474, 479 (1909). Generally, a license or permit fee is a charge for a privilege granted by the license or permit. 9 McQuillin, Municipal Corporations § 26.32, at 92 (3d ed. 1995). A fee exacted pursuant to a regulatory scheme falling within the police powers of a municipality appears, on the surface, to be a valid regulatory fee. See id. § 26.16, at 45. Whether an exactment falls within the category of a fee or a tax, however, "must be determined by its operation rather than its specially descriptive phrase." Thomson Elec. Welding Co. v. Commonwealth, 275 Mass. 426, 429 (1931).

To determine whether a government exaction is a fee or a tax, we consider the following factors: (1) a fee is charged in exchange for a governmental service that benefits the party paying the fee in a manner not shared by other members of society; (2) a fee is paid by choice, in that the fee payer has the option of not utilizing the governmental service and thereby avoiding the charge; and (3) the charge is collected not to raise revenues but to compensate the governmental entity providing the service. Emerson College v. Boston, 391 Mass. at 424-425. See National Cable Television Assn. v. United States, 415 U.S. 336, 340-341 (1974).

The burden of proving that the burial permit charge is a tax rather than a fee falls on Silva. Nuclear Metals, Inc. v. Low-Level Radioactive Waste Mgmt. Bd., 421 Mass. 196, 201 (1995). The parties appear to agree that on this summary judgment record, there are no material facts in dispute and the matter may be decided as one of law. We apply the factors set forth in Emerson College v. Boston, supra.

1. Particularized service benefitting the party paying the fee. The first consideration is whether the charge is for a "particular governmental service which benefits the party paying the fee in a manner 'not shared by other members of society.' " Emerson

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College v. Boston, 391 Mass. at 424, quoting from National Cable Television Assn. v. United States, supra. In other words, "[f]ees are legitimate to the extent that the services for which they are imposed are sufficiently particularized as to justify distribution of the costs among a limited group (the 'users,' or beneficiaries, of the services), rather than the general public." Id. at 425. Silva claims that Fall River provides no particularized service for the burial permit fee and that, in the alternative, any service it does provide does not benefit the fee payer in a manner not shared by other members of society. [Note 7] Silva points out that, unlike other mandatory city permits, such as building and food permits, where inspections are routinely made, a burial permit requires no particular governmental service before it is issued.

Fall River responds that Silva derives an economic benefit from the regulation of the disposition of human remains. We think it is perhaps more accurate to state that Silva derives an economic benefit from the regulation of the funeral industry, for which he pays separate licensing fees. In any event, Fall River has cited no authority, nor are we aware of any, for characterizing economic benefits incidental to regulation as a "particular governmental service."

Silva argues that, even if Fall River provides a particularized service for the fee, he receives no special benefit from the receipt of a burial permit because proper and timely disposition of human remains is a public health function that benefits the community at large. In response, Fall River analogizes the burial permit fee to the fee charged for the disposal of low-level radioactive waste. In Nuclear Metals, Inc. v. Low-Level Radioactive Waste Mgmt. Bd., 421 Mass. at 202-203, a generator of radioactive waste challenged an assessment by the State board regulating disposal of such waste. The Supreme Judicial Court concluded that there was a "sufficiently particularized" benefit to the plaintiff to make the charge a fee rather than a tax, stating that "[w]hile the safe disposal of low-level radioactive

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waste is a public benefit . . . it is the plaintiff (and not the general public) which requires access to disposal facilities for low-level radioactive waste meeting Federal and State standards." Id. at 204-205. We think that the comparison to low-level radioactive waste falls short, if for no other reason than that the funeral director or other burial permit seeker is not the generator of the human remains requiring disposal.

Where charges have been determined to be valid fees rather than taxes, the fee has been for a particular service provided to a discrete group. See Southview Co-op. Hous. Corp. v. Rent Control Bd. of Cambridge, 396 Mass. 395, 402-404 (1985) (fee paid by landlord to petition for rent adjustment was for particular service benefitting landlord); Bertone v. Department of Pub. Util., 411 Mass. 536, 548-549 (1992) (electrical hookup charge was only to new or expanded customers, therefore there was sufficient particularization because new or expanded customers received benefit of new or expanded electricity); Commonwealth v. Caldwell, 25 Mass. App. Ct. 91, 95-96 (1987) (fee particularized to people choosing to moor boats); Winthrop v. Winthrop Hous. Authy., 27 Mass. App. Ct. 645, 647 (1989) (particularized benefit to those users who hooked up to sewer system); Aiello v. Commissioners of the County of Dukes County, 35 Mass. App. Ct. 151, 153-154 (1993) (charge for town communications center follow-up on electronic alarm signals was particularized to users). Contrast Emerson College v. Boston, 391 Mass. at 418 n.5, 427 (fire protection once included in general property tax was improperly reclassified as special service); Greater Franklin Developers Assn. v. Franklin, 49 Mass. App. Ct. at 504 (provision of school facilities is not particularized service but is government's obligation to provide such facilities out of general revenue funds).

That the general public benefits from a regulated system of disposal of human remains cannot be seriously contested. Wyeth v. Board of Health of Cambridge, 200 Mass. at 479. Compare Emerson College v. Boston, 391 Mass. at 425-426 (fire protection services benefitted not just property interests of owner but occupants of building and surrounding buildings and their occupants); Berry v. Danvers, 34 Mass. App. Ct. 507, 510 (1993) (charge for connecting to sewer system was not just used for

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new connections and benefitted all users); Greater Franklin Developers Assn. v. Franklin, 49 Mass. App. Ct. at 503 (benefit of expanded school facilities was not particularized to fee payers).

We think that the issuance of the burial permit does not benefit Silva or any other permit seeker in a manner not shared by the general public. The enforcement of regulations regarding the disposal of human remains is an essential governmental function.

2. Choice of payment. The second factor is whether the charge is paid by choice "in that the party paying the fee has the option of not utilizing the governmental service and thereby avoiding the charge." [Note 8] Emerson College v. Boston, 391 Mass. at 424-425. According to Emerson College, whether a person may choose to avoid a fee is determined by whether the person challenging the fee may avoid engaging in the activity for which the charges are assessed. Nuclear Metals, Inc. v. Low-Level Radioactive Waste Mgmt. Bd., 421 Mass. at 205.

Silva argues that he has no choice but to procure a burial permit. The motion judge concluded that Silva may avoid the fee by choosing another profession. See Bertone v. Department of Pub. Util., 411 Mass. at 549, quoting from Southview Co-op. Hous. Corp. v. Rent Control Bd. of Cambridge, 396 Mass. at 402 (fees are not taxes 'even though they must be paid in order that a right may be enjoyed').

That Silva himself, in his capacity as a funeral director, may avoid the fee by choosing another profession does not, however, end the inquiry in the circumstances of this case. The fee payer, ultimately, is the person requiring Silva's services. [Note 9] Anyone seeking to dispose of the remains of a person who died in Fall River will be unable to avoid the fee. See Berry v. Danvers, 34

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Mass. App. Ct. at 512-513 (charge was tax where State Environmental Code required use of local sewer system and did not permit construction of private sewer system). Moreover, the fact that proper interment and the burial permit are compelled is further confirmation of the public nature of the benefit. "Fees generally are charged for services voluntarily requested." Emerson College v. Boston, 391 Mass. at 426. See National Cable Television Assn. v. United States, 415 U.S. at 341 (fee is incident to voluntary act).

3. The purpose of the fee. The final factor under the Emerson College test is whether the charge is made for the purpose of raising general revenue or for the purpose of covering the cost of the governmental service. Fall River may charge a fee for reasonable expenses incident to enforcement of the statutory requirement that it issue burial permits, as municipalities have authority to impose fees "to cover reasonable expenses incident to the enforcement of the rules." Commonwealth v. Plaisted, 148 Mass. 375, 382 (1889). See Southview Co-op. Hous. Corp. v. Rent Control Bd. of Cambridge, 396 Mass. at 400.

Other than Fall River's assertion in its brief that the money collected is a best estimate of the cost of record-keeping, there is nothing in the record indicating what the charges are for or what expenses Fall River incurs as a result of the burial permit requirement. [Note 10] No affidavit in support of Fall River's motion for summary judgment or in opposition to Silva's motion appears in the record. There is no reference to any expenses caused by the burial requirements or other services provided by Fall River in the parties' statement of undisputed facts. There is also nothing in the record to indicate that Fall River checks the issued burial permits to be certain that the coupon verifying burial has been returned.

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Silva points to the fact that the fees are deposited in Fall River's general account as evidence that the fees were "destined instead for a broader range of services or the general fund." Berry v. Danvers, 34 Mass. App. Ct. at 513. Fall River claims in its brief that the fee represents a reasonable estimate of the cost of the service provided, which is the service of supervision and record keeping in connection with the disposition of each dead body and that the fee is not large enough to subsidize general governmental operations. [Note 11]

In some circumstances, a rough estimate may be sufficient. See Aiello v. Commissioners of the County of Dukes County, 35 Mass. App. Ct. at 154 (fee was crude estimate but there was no showing that charges significantly and consistently exceeded cost of services). Furthermore, it has been suggested, at least with regard to license fees, that the amount of the fee would not be "scrutinized too curiously even if some incidental revenue were obtained." Southview Co-op. Hous. Corp. v. Rent Control Bd. of Cambridge, 396 Mass. at 403, quoting from Opinion of the Justices, 250 Mass. at 602.

Here, however, with uncontradicted evidence that the funds are deposited to Fall River's general account and nothing in the record to indicate the basis on which the charge was calculated or how the funds are used to defray expenses, we cannot conclude that the money collected is not used to subsidize general governmental operations. See Berry v. Danvers, 34 Mass. App. Ct. at 513 (where revenue was deposited into general fund and was available for use for many other sewer projects it was properly characterized as tax). Contrast Bertone v. Department of Pub. Util., 411 Mass. at 550 (revenue generated by fee was not added to general fund for service to all but was targeted to newly required construction); Nuclear Metals, Inc. v. Low-Level Radioactive Waste Mgmt. Bd., 421 Mass. at 207 (charge was fee where it funded particularized services

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provided by board, no part of charge was treated as general revenue and, in fact, went into separate fund).

Conclusion. It is tempting to characterize the burial permit fee as a valid regulatory fee because, after all, there are other events in life that are also unavoidable and in which regulatory power of government is necessarily involved. Birth, sewer use, and water use easily come to mind. When examined closely, however, the comparisons fail. While a municipality may charge a fee for furnishing a copy of a birth certificate, there is no charge for recording a birth. See G. L. c. 262, § 34. It appears that the burial permit fee is a charge for merely recording the permit. Sewer use charges have been found to be an invalid tax in circumstances where the use was compelled. See Berry v. Danvers, 34 Mass. App. Ct. at 512-513. As for water, we concluded that a municipality's surcharge on the use of town water was a valid fee because, in the circumstances of the case, the benefits of the service supported by the fee were sufficiently particularized to the surcharged users and there was nothing in the record to suggest that the fee was used to supplement the general revenue. See Morton v. Hanover, 43 Mass. App. Ct. 197, 200, 202 (1997).

We think that the burial permit charge is better characterized as a tax than a fee because the payer of the fee derives no benefit that is not shared by the general public, proper interment is mandatory, the burial permit is mandatory, and it does not appear in the record that the funds are used to defray the cost of enforcing the relevant regulations. The judgment declaring that the burial permit charge is a fee is vacated. We remand the case for further proceedings consistent with this opinion.

So ordered.

BROWN, J. (concurring in result). I see no need to take a position on the analysis of the majority. I write only to point out that Fall River, like so many other litigants, did not fully appreciate the devastating consequences that may ensue from a

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failure to understand the summary judgment procedural protocol.

As soon as the summary judgment materials were presented to the Superior Court for resolution, Fall River was doomed, as it had failed to controvert the assertions of the moving party. See Community Natl. Bank v. Dawes, 369 Mass. 550, 553-556 (1976), for boilerplate language setting out the prescribed scenario to be followed in a summary judgment context. Dawes is the seminal case, but its progeny is long and explicit.