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07-23-05 The Way cannot prohibit mom’s cemetery visits

By Shelley Grieshop

  A judge ruled that a former member of The Way International has a legal right to gain access to a cemetery owned by the New Knoxville-based religious organization.

  Several requests were granted and others denied in the lawsuit filed against the ministry by Shannon Bottoms of Tennessee whose stillborn son's ashes were interred at The Way Cemetery in 1978.
  The ruling was made by Judge John D. Schmitt of Shelby County Common Pleas Court in Sidney.
  Schmitt also stated The Way has "every right to make reasonable policies and regulations regarding the use of its cemeteries," adding the organization's current regulations and policies are "reasonable and necessary."
  Bottoms, who has never been denied access to the cemetery, sought more than $15,000 in compensatory damages and an unstated amount in punitive damages. However, a dollar amount was not mentioned in the judge's ruling.  Way officials, in their response to the lawsuit, said they must have the right to deny visitation requests for security reasons and to avoid conflict with preplanned ministry events. Way officials have regulations requiring visitors to seek permission in advance of any visit.
  The cemetery in question is located in a heavily-wooded area surrounded by homes on the ministry's private property in rural New Knoxville. Only ashes are buried in The Way Cemetery, for which Bottoms sought a right of access, court documents state. Entry into a second cemetery on Way property, The Garden of Living Waters, was not contested.
  In the suit, Bottoms asked the court to rule on four counts:
  The first count was for breach of contract based upon alleged promises she said The Way director made to her years ago concerning the cemetery's accessibility. The court found this issue moot after granting count two, which gave Bottoms easement rights to the cemetery and plot.
  "When Ms. Bottoms interred her son, Matthew, in The Way Woods, an implied easement in the burial plot was created," Schmitt stated in his judgment. Bottoms wrote in her complaint that she was promised by former Way director Dr. V.P. Wierwille, "I would always have reasonable access to him (her son's remains)."
  In count three, Bottoms sought the easement for cemetery access, claiming there was no other means for her to visit the cemetery than to trespass on The Way property. The judge agreed, citing the fact the cemetery cannot be accessed from any public roadway.
  In the fourth count, Bottoms claimed The Way "manifested an intention to form a trust" with the Way having fiduciary duty as trustee of the cemetery site. Bottoms had claimed the mere creation of a burial site constituted such a trust.
  However, the judge ruled there was no evidence that a conveyance, a transfer of property or a written declaration of such intention -- as required under Ohio's cemetery trust laws -- was ever made.
  Bottoms filed the suit jointly in September 2004 with another former member, Douglas R. McMullan of Mississippi. The pair contested The Way's policy on cemetery visitation, claiming their rights to pay respects to deceased family members and friends was violated by the ministry. The pair left The Way in April 1985.
  McMullan was dismissed from the suit in December 2004 because he "failed to set forth a viable claim," the judge wrote.
  McMullan was sentenced earlier this year to five days in jail for failing to follow a court order to stay away from the private cemeteries. He entered Way property without permission in October 2004 and was charged with trespassing; it was the fourth documented time he attempted to enter the cemetery illegally. The trespassing charge was later dropped.
  Although McMullan already served his sentence for the contempt charge, he has appealed the case to the Third District Court of Appeals in Lima. The higher court has yet to rule.
  McMullan, 53, claims to have friends buried in at least one of the two cemeteries owned by the ministry. In the recent judgment, Schmitt wrote that non-relatives such as McMullan do not have the same easement rights in private Ohio cemeteries as relatives.
  Bottoms has sought and gained permission to enter the cemetery on three different occasions since January 2003. McMullen, who joined The Way in 1971 and later was ordained a minister for the organization, refused to sign the acknowledgment form.


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