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  • WisBar News
    September 05, 2017

    Funeral Home, Cemetery Anti-Combination Laws Survive Challenge

    Atty. Joseph P. Forward

    Funeral Service

    Sept. 5, 2017 – So-called “anti-combination” laws that prohibit joint ownership and operation of a cemetery and a funeral home withstood a constitutional challenge recently, as a state appeals court has ruled the law has a rational basis.

    Petitioner E. Glenn Porter III argued that the law violates equal protection and due process protections if the court applies a more stringent form of rational basis scrutiny, known as “rational basis with bite.” But the appeals court did not agree.

    In Porter v. State of Wisconsin, 2016AP1599 (Aug. 29, 2017), a three-judge panel for the District III Appeals Court concluded that Wisconsin’s anti-combination law survives constitutional scrutiny, regardless of whether a more stringent review is applied.

    “[W]hether analyzed using traditional rational basis scrutiny or a so-called ‘rational basis with bite’ standard, the anti-combination laws pass constitutional muster, in that Porter has failed to show beyond a reasonable doubt they are not rationally related to a legitimate government interest,” wrote Judge Lisa Stark for the three-judge panel.

    Porter is president of a cemetery in New Berlin and wanted to operate a funeral home in conjunction with the cemetery. But Wis. Stat. section 157.067(2) and 445.12(6) prohibit funeral homes at cemeteries or financial connections between the two.

    Thus, he facially challenged the statutes, arguing that they “arbitrarily and irrationally prevent cemetery operators from owning an interest in a funeral establishment” and vice versa. He argued that the laws are not supported by a legitimate government interest.

    The state argued that the state has an interest in “preserving competition in the death care services industry, protecting consumers from higher prices and poor service, and reducing the potential for abuses from commingling of cemetery and funeral revenues.”

    Rational basis scrutiny applied, the panel noted, because the laws do not affect fundamental rights and cemetery and funeral home owners are not a suspect class.

    Porter conceded that rational basis applied. But he argued a stricter form of that test should control – the so-called “rational basis with bite” test – because the laws have a protectionist motive: to insulate funeral directors from competition.

    “However, we need not resolve the parties’ dispute regarding whether the applicable level of scrutiny, here, is traditional rational basis review or rational basis with bite,” Judge Stark wrote.

    “Ultimately, under either standard, we conclude as a matter of law that the anti-combination laws are not unconstitutional on substantive due process or equal protection grounds.”

    The panel rejected Porter’s claim that the anti-combination laws do not protect consumers from increased prices or shield them from other abuses. It also said the legislature, not the court, is the appropriate venue for deciding the wisdom of the laws.

    “Rational basis review ‘does not allow us to substitute our personal notions of good policy for those of’ the legislature,” Judge Stark wrote.

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