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  • WisBar News
    July 06, 2018

    Court Upholds Laws Against Joint Ownership of Cemeteries, Funeral Homes

    Joe Forward

    Funeral Service

    July 6, 2018 – Laws that prevent joint operation of funeral homes and cemeteries recently withstood a challenge at the state Supreme Court, with a 5-2 majority rejecting a cemetery owner’s facial challenge on equal protection and due process grounds.

    E. Glenn Porter III, who owns a cemetery in New Berlin, challenged the constitutionality of statutes known as the “anti-combination laws.” Porter argued that the laws violated his right to equal protection and due process under state and federal constitutions.

    In Porter v. State of Wisconsin, 2018 WI 79 (June 27, 2018), a 5-2 majority said the statutes “are rationally related to the legitimate government interests of protecting the welfare of particularly vulnerable consumers and limiting or minimizing the manipulation of funds required to be held in trust by funeral directors and cemetery operators.”

    Justice Rebecca Bradley and Justice Daniel Kelly wrote a joint dissent. They would have declared the laws unconstitutional as related only to an illegitimate purpose.

    Majority: Laws have a Rational Basis

    Porter wanted to expand his business, Highland Memorial Park Inc., to operate a funeral establishment with existing cemeteries. The laws, Wis. Stat. sections 157.067(2) and section 445.12(6), together prohibited Porter from running them in conjunction.

    A circuit court ruled against Porter and the appeals court affirmed, concluding the laws withstood rational basis review regardless of the scope of review employed.

    A Supreme Court majority affirmed, rejecting Porter’s argument that the anti-combination laws create anti-competitive and unconstitutional distinctions between classes of people that apply only to funeral directors and cemetery operators.

    But the state offered the opinion of an economics professor who said the anti-combination laws encourage competition and protect the interests of consumers.

    That is, cemeteries with a financial interest in a funeral home could charge lower prices for burials from partner homes and higher prices from other funeral homes, and potential abuses could occur if cemeteries and funeral homes are commingling funds.

    Another economics professor, a Porter witness, concluded that anti-combination laws actually increase the costs of death care services. But the Supreme Court majority noted that constitutional challenges must overcome a presumption of constitutionality

    In addition, the majority rejected Porter’s contention that a “rational basis with teeth” review applies to his facial constitutional challenge, noting the court discharged the “rational basis with teeth standard” in a different decision released the same day.

    Instead, the majority applied a five-step analysis to determine the anti-combination laws have a rational basis and do not violate the equal protection or due process clauses.

    “The unique characteristics of funeral establishment directors and cemetery operators ‘reasonably suggest’ that the anti-combination laws serve the public good by protecting vulnerable consumers,” wrote Justice Shirley Abrahamson for the five-justice majority.


    Justices R. Bradley and Justice Kelly wrote a joint dissent, harkening back to the nation’s founders and arguing that the constitution “compels the judiciary to protect the liberty of the individual from intrusions by the majority” and “earnestly scrutinize laws.”

    “Applying even the most deferential review of the laws challenged in this case, we discern no legitimate government interest underlying the anti-combination statues,” they wrote, noting they would have reversed and declared the laws unconstitutional.

    “Trade protectionism is not a legitimate purpose,” they wrote in a 34-page dissent. “[B]ecause the anti-combination laws are rationally related only to an illegitimate purpose, they violate the petitioners’ right to the equal treatment of the laws.”

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