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Suspending funeral director was a mistake, state admits

JANESVILLE — The state of Wisconsin has acknowledged it was wrong to suspend the license of Janesville funeral director Cassandra Clarson, and the state agreed to pay legal fees for her and her partner, Roger Henke, up to a limit set by law.

Regardless of their victory, Clarson and Henke are continuing their lawsuit against the state to get certain administrative rules declared unconstitutional. If they prevail, the state could be ordered to pay more than the $68,000 in attorneys’ costs and legal fees it already agreed to cover.

And Clarson and Henke are continuing their lawsuit against their former partner, Dale Holzhuter, whose false complaint in 2002 started the legal and public relations ordeal that has cost the pair $100,000 in legal fees and “hundreds of thousands of dollars” in lost business and damaged reputations, said their attorney, David C. Moore, Janesville.

“This case gave me an appreciation of the damage an irresponsible government agency can cause,” Moore said.

Because of a court order agreed to by both Henke Clarson Funeral Home and the state, the funeral home at 1010 N. Wright Road, Janesville, has continued to do business—despite the suspension of Clarson’s license—pending resolution of the legal action.

But now, the suspension ordered by the Wisconsin Funeral Directors Examining Board has been reversed.

The administrative complaint that triggered the board’s decision was started by an investigator for the Wisconsin Department of Regulation and Licensing.

The complaint was dismissed.

The state and Henke Clarson agreed to the reversal and dismissal in what is called a stipulation, which was signed Monday by Rock County Judge James Welker.

The regulation and licensing investigator began his probe after receiving the false complaint. Holzhuter admitted at an administrative hearing on the matter that the complaint was false and made under a fictitious name, according to a legal brief written by Moore.

The Janesville Gazette was unsuccessful in attempts Wednesday to contact Holzhuter’s attorney for comment.

Citing the ongoing lawsuits, Kevin St. John, spokesman for the state Department of Justice, declined to comment. The justice department represents other state agencies, such as the regulation and licensing department and funeral directors board, when they are sued.

The dismissed complaint alleged that Henke, who was not a licensed funeral director, performed services limited by regulation to a licensed funeral director.

Before determining the initial complaint’s validity, the investigator sent questionnaires to other Henke Clarson clients. Two responded.

Based on the false initial complaint and the two responses—which Moore argued in his brief were inconsistent and not based on facts—the investigator charged that Henke had violated a section of administrative code by:

-- Meeting with families to gather obituary information

-- Discussing funeral services with clergy and scheduling services

-- Discussing contract terms and money to be paid by families

Henke was not accused of transporting or embalming bodies or preparing them for burial or cremation.

Because Henke is not a licensed funeral director, the funeral directors examining board could take no action against him. Instead, the board suspended Clarson’s license for “aiding and abetting” Henke.

Moore prepared his detailed legal brief to argue against the suspension on many grounds. The brief also contended that the administrative rules Henke was alleged to have broken were unconstitutional.

But Moore did not file the brief because of the stipulation reversing the suspension and dismissing the complaint.

Nevertheless, the Henke Clarson suit against the state is proceeding on the constitutional issue. That argument centers on whether administrative rules can prohibit people who are not licensed funeral directors from performing services that are related to funerals but are not embalming or similar body preparation services.

Henke and Clarson contend the rules violate their right to free commercial speech under the First Amendment of the U.S. Constitution.