The District 4 Court of Appeals overturned a decision by Rock County Court Judge James Welker, who last year found that rules against unlicensed funeral directors making funeral arrangement were unconstitutional.

The appeals court also reversed Welker’s finding that the Funeral Directors Examiners Board had attempted to violate Roger Henke’s and Cassandra Clarson’s free speech rights.

The board had suspended Clarson’s license as a funeral director for one year in 2007 after determining Henke had violated rules against making funeral arrangements without a license. The wife of a former Henke-Clarson business partner, Dale Holzhuter, had brought the complaint against Henke. The board determined the complaint’s information “was fabricated,” according to the appeals decision.

After Henke-Clarson filed suit in Rock County, the state dismissed the suspension and agreed to pay Henke-Clarson $68,000 in attorney fees. However, Henke-Clarson sought damages claiming the board violated its First Amendment rights by filing the complaint and by board investigators informing some of the funeral home’s customers that Henke and Clarson had violated state regulations.

In the opinion issued Thursday, the appeals court concluded that while Henke-Clarson’s claim may support a defamation action, they didn’t prove their First Amendments rights were violated. The opinion also stated Henke’s and Clarson’s rights were not impinged by an attempt to violate the First Amendment.

The appeals court returned the case to Welker to develop arguments regarding what the regulations prohibit regarding communications between supervised but unlicensed funeral home employees and their customers.

David Moore, attorney for Henke-Clarson, called the opinion “adverse” to his clients and did not know Thursday if the case against the board will be pursued further.

“These regulations have never been challenged before on First Amendment grounds, which is what the appeals court focused on while the briefs in the case were directed toward governmental immunity,” Moore said.

William Cosh, a spokesman for the attorney general’s office, which represented the board, declined comment on the decision. does not condone or review every comment. Read more in our Commenter Policy Agreement

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