Wednesday, October 4, 2023
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Cemetery Owner Fights Outmoded State Law

WAUKESHA, Wisc. (CN) - A cemetery owner who wants to add funeral services to his business sued Wisconsin for its "anticompetitive, arbitrary and irrational government regulation" that prohibits him from doing it.

E. Glen Porter III, owner of Highland Memorial Park Inc. in New Berlin, sued Wisconsin, its Department of Safety & Professional Services and the Wisconsin Funeral Directors Examining Board, in Waukesha County Circuit Court.

Porter wants to add a funeral home to his cemetery but Wisconsin law prevents a single person or business from owning or operating both a funeral home and a cemetery.

"The plaintiffs do not dispute that the state may regulate the funeral services industry in circumstances where such regulation is necessary to secure the legitimate goals of public health, safety and welfare," the complaint states. "But the state laws and regulations at issue here are unnecessary to secure such goals and are in fact counterproductive. No public health or safety concerns require the ownership or operation of cemeteries to be completely independent from the ownership or operation of funeral establishments. And public welfare is best served in circumstances where consumers can obtain the benefits of efficiency and innovation through choice."

State law also prevents the operation of a funeral home and cemetery on the same property, even if ownership is different.

"This makes no sense at all," the complaint states. "Consumers of death-care services might in many cases prefer to take advantage of a funeral home located in the cemetery where they will lay their loved one to rest. The State of Wisconsin's decision to prohibit such a practical and sensible arrangement cannot be rationally justified and is entirely arbitrary."

The law affecting dual ownership of cemeteries and funeral homes was drafted in 1939, according to the complaint, in reaction to a businessman in California trying it for the first time.

"His decision to build a mortuary and operate as a funeral director on the cemetery property was not well-received by California funeral directors, who considered it a threat to their historical business model," the complaint states. "In fact, the California Board of Embalmers and Funeral Directors refused to grant Forest Lawn a license to operate as a funeral establishment - a license to which it was entitled under the applicable regulations. Litigation followed, and eventually the court concluded that the Board's refusal to grant Forest lawn a license had been improper and unlawful."

Since that case, combined ownership of funeral homes and cemeteries has become more common in other states. Wisconsin, however, still has laws on the books designed to protect the business interests of funeral home directors, according to the complaint.

"The effect of these statutes is to prevent competitive innovation in the death-care services industry in Wisconsin," the complaint states.

The plaintiffs seek declaratory judgment, an injunction and damages for violations of due process and equal protection under the Wisconsin Constitution.

They are represented by Richard Eisenberg with the Wisconsin Institute for Law & Liberty, in Milwaukee.

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