Schoeller v. Bd. of Registration of Funeral Dirs. & Embalmers

463 Mass. 605

977 N.E.2d 524

Troy J. SCHOELLER

v.BOARD OF REGISTRATION OF FUNERAL DIRECTORS AND EMBALMERS.

SJC–10980.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 6, 2012.

Decided Oct. 26, 2012.

Jason Benzaken, Brockton, for the petitioner.

Sookyoung Shin, Assistant Attorney General, for the respondent.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

DUFFLY, J.

After an adjudicatory hearing, the Board of Registration of Funeral Directors and Embalmers (board) issued an order permanently revoking Troy J. Schoeller's licenses to do business in the Commonwealth as a funeral director and embalmer. G.L. c. 112, §§ 61, 84. The disciplinary action arose after Schoeller made comments to a newspaper reporter about his experiences in the embalming profession and those comments were later published as part of an article about Schoeller. Schoeller did not reveal any confidential or private information about any deceased person or bereaved family members whom he had served. Rather, the board found that Schoeller had violated an ethical regulation prohibiting an embalmer from “comment[ing] on the condition of any dead human body entrusted to his or her care,” 239 Code Mass. Regs. § 3.13(7) (1998),¹ and that he had used unprofessional language in his descriptions of dead bodies. By doing so, the board concluded, Schoeller had “engaged in gross misconduct and unprofessional conduct which undermines the integrity of the profession.” Schoeller filed a petition in the county court, pursuant to G.L. c. 112, § 64, seeking review of the board's order. The single justice reserved and reported the case without decision.

Schoeller generally raises the same claims on appeal as he did before the board. He contends that 239 Code Mass. Regs. § 3.13(7) cannot be a valid basis for discipline because it is unconstitutionally vague and overbroad, and impermissibly abridges his freedom of speech in violation of both the United States Constitution and the Massachusetts Declaration of Rights. He argues also that the board's decision was arbitrary and capricious, an abuse of discretion, and not supported by substantial evidence. Even if there were grounds for discipline, Schoeller contends, the permanent revocation of his license is grossly disproportionate to the alleged misconduct, in violation of his right to due process.

After considering Schoeller's constitutional claims, the board concluded that the regulation “is reasonably related to the [b]oard's interest in protecting the public welfare, which includes preserving the integrity of the funeral services profession, by disciplining funeral service professionals who speak in an undignified and salacious manner about the condition of dead bodies.” The board argues before us that the regulation, as construedby the board, reaches only a narrow category of speech that the board has a substantial and legitimate interest in regulating.

We conclude that, even under the board's limited construction, a regulation prohibiting “unprofessional” or “undignified and salacious” comments is overbroad, and therefore unconstitutional, because it restricts a substantial amount of protected speech. As such, 239 Code Mass. Regs. § 3.13(7) is not a valid basis for the board's disciplinary action against Schoeller. We conclude also that the board's asserted interest in maintaining the integrity of the funeral services profession is insufficient to justify the type of restriction on speech at issue here.

1. Background. Schoeller has been licensed in Massachusetts as an embalmer since 1999, and as a funeral director since 2004. He was also licensed as an embalmer in Florida for several years before moving to the Commonwealth. Schoeller has no prior history of discipline with the board or in Florida.

The conduct at issue here occurred in late 2006, when a newspaper reporter sought to interview Schoeller about a retail clothing store Schoeller had opened in the Allston section of Boston. Schoeller agreed to the request and met with the reporter in his store on December 6, 2006. The initial interview was conducted in a formal question-and-answer format. After the interview, the reporter invited Schoeller to dinner to continue their conversation. Schoeller accepted the invitation and, along with his wife, joined the reporter at a local restaurant the following evening. The conversation at the restaurant was friendly and informal. Schoeller understood that the purpose of the meeting was “to further the interview about [his] store.” ² Among the topics discussed that evening was Schoeller's work as an embalmer, and Schoeller made statements describing certain of his experiences. Approximately one week later, the newspaper published an article about Schoeller that included his comments about embalming.

The board based its disciplinary action on three passages in the article. In the first, Schoeller describes rebuilding the body of an infant who had been involved in a traumatic accident:

“ ‘The medical examiner cut all the bones out of this infant ...,’ Schoeller recalls, ‘and they did a calvarian, which means they cut the top of your head off and take out your brain. So I had a baby that looked like a bear skin rug. I had to rebuild it in nine hours. I used everything: duct tape, masking tape, tissue builder, wound filler. I worked for nine and a half hours.... I put, like, coat hangers and caulk in there and put him into a little baby outfit. He even weighed enough too, because I packed his head and his chest. He looked awesome.’ ”

The second passage contains a comment by Schoeller about embalming obese persons:

“Looking over the menu ... before his wife arrives, Schoeller says he can't order the chicken satay here because when he got it last time, the skewered meat had fat chunks on it. ‘I can't eat fat like that,’ he says. ‘And I really hate embalming fat people, like people who weigh 300 pounds. Because when you cut open a fat person,’ he says matter-of-factly, ‘butter leaks out. Literally, yellow oil leaks out of the wound and floats on top of the water. If you put butter in the microwave and put it in the water, it turns into little balls—fat globules—and that's what comes out of fat dead people. It's so nasty.’ ”

The third passage contains a comment by Schoeller about inhaling gases released by decomposing bodies:

“On the walk home to the couple's ... apartment, Schoeller thinks of something else to tell me. ‘Here's something my friends find amusing. Decomposing bodies give off methane. What your body does with methane, it puts it all in the same place, which is your bowels. So you actually fart out dead people rot and it smells like the guy you were working on today. I'll go home and I'll fart and [my wife] will be like, “Oh my God,” and I'll be like, “That was Mr. Rosenberg.” ’ ” ³

After seeing Schoeller's statements in the article, the chapel that employed Schoeller as an embalmer terminated his employment and filed a complaint with the board. The board commenced an investigation, then issued an order requiring Schoeller to “show cause why the [board] should not suspend, revoke or otherwise take action against [his] license.” ⁴ The board alleged that Schoeller's statements in the article were “comment[s] on the condition of dead human bodies entrusted to [his] care,” in violation of 239 Code Mass. Regs. § 3.13(7) (§ 3.13[7] ),⁵ and constituted “gross immorality” and unprofessional conduct that undermined the public confidence in the integrity of the funeral services profession.⁶

Schoeller did not dispute that he had made the statements attributed to him, but denied that those statements violated any statute, regulation, or rule. He asserted that his statements were factually accurate and thus protected under the First Amendment to the United States Constitution and art. 16 of the Massachusetts Declaration of Rights, as amended by art. 77 of the Amendments to the Massachusetts Constitution. He argued that his comments therefore could not be the basis of any disciplinary action. Schoeller also moved to dismiss the order on the grounds that the board's regulations were unconstitutionally vague and overbroad, in violation of his rights to free speech and due process of law.

The board denied Schoeller's motion and held an evidentiary hearing on December 2, 2009. At the hearing, the board presented numerous exhibits and the testimony of two witnesses. John W. Bresnahan, the board's investigator, testified as an expert on the professional standards of the funeral services industry in Massachusetts. Bresnahan testified that Schoeller's comments did not conform to professional standards of conduct because Schoeller had commented on the condition of a dead human body entrusted to his care, in violation of § 3.13(7). When asked to expand on this opinion, Bresnahan asserted that the regulation “calls for appropriate care to the deceased,” which includes not using any “unprofessional language.” Bresnahan said that Schoeller's comments amounted to “gross misconduct” because he had violated § 3.13(7) and had used unprofessional language in discussing the embalming of deceased persons.

During cross-examination, Bresnahan acknowledged that he was not aware of any embalmer or funeral director who had been disciplined for commenting on the condition of a deceased person. He also testified that embalmers often discuss the condition of dead bodies in the course of their training and education and in trade journals and other professional publications. When asked to clarify whether § 3.13(7) prohibits an embalmer from ever commenting on the condition of a dead body, or whether it only prohibits doing so with unprofessional language, Bresnahan testified that, in his opinion, the regulation requires embalmers to use “appropriate, professional language” when commenting about a dead body.

The board found that Schoeller had violated § 3.13(7) and “the [o]ath of the [b]oard.” ⁷...