Mass. high court upholds local fee for burial permits
Fall River family called it a tax
A quest by members of a Fall River clan to end what they considered an illegal tax on grieving families ended yesterday when the state’s high court said burial permit fees are legal.
Martin Silva, who has a law degree but whose job is with his family-owned funeral home business, said he was disappointed by the Supreme Judicial Court ruling.
“It’s a shame they didn’t decide to throw a bone to the little guy,’’ Silva said in a telephone interview. Grieving families “paid the funeral home to do something. They paid the cemeteries. This is just the government getting more money.’’
In a unanimous ruling, the SJC said the fees levied by some communities are a routine part of municipal government in the state, are aimed at protecting public health, and cannot be legally viewed as a tax.
“The burial permit charges are regulatory fees, not proprietary fees,’’ Justice Judith Cowin wrote for the court. “These charges are founded upon the State’s police power to regulate the disposal of dead bodies in a manner that preserves the public health, safety and welfare.’’
Cowin also noted “although a municipality has no independent power of taxation, it may assess, levy, and collect fees when the Legislature has authorized it to do so, provided that those fees are reasonable and proportional.’’
The Silva clan owns the Silva-Faria Funeral Homes in Fall River and Somerset. With Martin as their lawyer and brother Paul F. Silva as plaintiff, the family decided to challenge the legality of the fees.
Yesterday’s ruling ended about four years of litigation, during which the Silvas lost in Superior Court but won a major victory last year when the Appeals Court ruled in their favor.
But the communities - Attleboro, New Bedford, and Taunton - took the case to the Supreme Judicial Court.
Backed by Attorney General Martha Coakley, the communities argued that the fees were legal, but also warned that if the SJC changed the rules, municipal financial systems would be undermined.
“The city was concerned about this particular fee,’’ said Attleboro City Solicitor Robert S. Mangiaratti. “But we were also concerned about the impact that successful challenge would have to all the fees that cities charge.’’
Mangiaratti said Attleboro collects about $5,000 a year from the $10 fee, the same amount charged by Taunton. Fall River charges $20, according to court records.
Mangiaratti has been locked in legal battles with the Silvas since 2005, but he said he never questioned the sincerity of the family.
“I don’t think there was any sinister motivation at all,’’ he said. “It wasn’t part of a grand scheme by people who are against municipal fees. It just happened to be one party’s interest in the matter.’’
Martin Silva joked that he is now being kicked out of the family business because the SJC ruled against the family’s plan.
He said the family acted out of principle but will now have to admit defeat because the issue will not advance into the federal system. “We are at the end of the line here,’’ he said. “It’s the principle of the thing.’’ 