2009AP363 Henke-Clarson Funeral Service LLC, et al. v. Jackson, et al.

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Constitutional Law
First Amendment; funeral board regulations

The State of Wisconsin Department of Regulation and Licensing, the State of Wisconsin Funeral Directors Examining Board and individuals within both organizations (collectively "the board") appeal from a circuit court decision denying its motion for summary judgment and granting summary judgment to Cassandra Clarson, Roger Henke and Henke-Clarson Funeral Home (collectively Henke and Clarson). The board argues that it is entitled to summary judgment, because all the defendants are entitled to both qualified and absolute immunity. It also argues that, on the facts of this case, Henke and Clarson are not entitled to declaratory or injunctive relief regarding the constitutionality of the board's administrative rules regulating funeral directors.

Henke and Clarson argue that they are entitled to partial summary judgment as to the fact that the board violated their rights under the First Amendment to the United States Constitution, and a trial to establish their damages under 42 U.S.C. § 1983; that the board is not entitled to either qualified or absolute immunity; and that the administrative rules regulating funeral directors are unconstitutional both facially and as applied in this case, entitling them to both declaratory and injunctive relief. We conclude, first, that the board is entitled to summary judgment on the 42 U.S.C. § 1983 claim. We then conclude that the parties' arguments on appeal are insufficient to establish whether Henke and Clarson are entitled to declaratory and injunctive relief. Accordingly, we reverse and remand with directions for the circuit court to enter partial summary judgment in favor of the board. Not recommended for publication in the official reports.

2009AP363 Henke-Clarson Funeral Service LLC, et al. v. Jackson, et al.

Dist IV, Rock County, Welker, J., Dykman, P.J.

Attorneys: For Appellant: Blythe, Christopher J., Madison; For Respondent: Moore, David C., Janesville

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