The state’s anti-combination law at the center of the dispute has been in place since 1939. Cemetery owner E. Glenn Porter III argues it prohibits him from expanding his business in violation of his rights to equal protection and due process.
He petitioned the state and its Funeral Directors Examining Board for a re-examination of the law.
The petition was denied on the basis that anti-combination laws are constitutional because they relate to the legitimate interest of protecting consumers in vulnerable circumstances from predatory pricing, commingling of funds and undue pressure.
Porter appealed but the lower courts also denied his petition.
He argues applying a “rational basis with bite” standard, a more stringent type of rational basis scrutiny, would require the state to prove the law actually, not just conceivably, pertains to a legitimate government interest.
Both sides provided expert reports supporting their claims as to whether the law serves the state’s claimed government interests.
Thursday’s arguments in the Wisconsin Supreme Court centered on what type of review should be done, if any, and the possible repercussions of changing the law.
Attorney Richard Esenberg appeared on behalf of Porter and opened his arguments by asking the court to reverse the circuit court’s grant of summary judgment to the state and remand the case back for a factual review of the law, with Porter carrying the burden of proof.
“Given what we known in the world, is it rational to think, that the anti-combination law would serve the hypothesized ends? In other words, to quote [a judge] from the Texas Supreme Court, ‘We cannot take the rationality out of the rational basis test, we must insist on actual rationality,’” Esenberg said.
Chief Justice Patience Roggensack questioned, “So every time there’s a law now that somebody doesn’t like, we let the circuit court find facts on it, when the Legislature has [already] had hearings throughout the state before they made a decision?”
“Given this court’s prior decisions, and we’ve laid them out in our brief, and the court consistently has looked at the evidence, at least when it comes to the right to earn a living and to engage in an otherwise legitimate business… We believe in cases such as this, it would be irrational for anyone to pursue an end, when the facts show that it is either impossible or extremely unlikely that that end will ever be achieved by the means that have been chosen,” Esenberg replied.
“If you want us to send this back for a factual determination, that the law doesn’t have facts underneath it, such that they had propounded it did when they passed the law– I don’t know all they heard, they were all over the state having hearings – we have never done that, it would be quite extraordinary,” Roggensack said.
Wisconsin Assistant Attorney General Ryan Walsh also challenged a factual determination in his argument by questioning how to explain the rational basis test to a jury, calling it “new territory.”
“It can’t be that any time you have an economist who says bad things about a law, you’re now suddenly going before the jury on the question of the facial constitutionality of the duly enacted statute. I think Wisconsin law would look a lot different if that [were the case],” Walsh said.
Chief Justice Roggensack agreed.
“I was surprised when opposing counsel said what they’re arguing is the right to prove certain facts because I can understand this case much better as a question of law, given what everybody has submitted,” she said.
In his closing arguments, Esenberg emphasized the importance of his expert’s opinion criticizing the basis of the law.
“The state was wrong when it characterized the plaintiff’s expert in this case as not saying that the law cannot serve the posited end, he absolutely said that the law cannot serve the posited end. [For example,] he said the circumstances of the death care industry are such that foreclosure cannot happen and then went on to point out that in the 39 states that permit combination laws, foreclosure has not happened,” he said, using the term “foreclosure” to refer to the elimination of competing independent funeral businesses.
Arguments in the case lasted a little over an hour. It is unclear when the Wisconsin Supreme Court will issue a decision.