Wisconsin Supreme Court Upholds Cemetery Rules

MADISON, Wis. (CN) – Rejecting a cemetery owner’s challenge to state consumer-protection laws, the Wisconsin Supreme Court ruled Wednesday that it is unlawful to own both a funeral home and a cemetery.

“The anti-combination 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,” according to the 20-page majority opinion penned by Justice Shirley Abrahamson.

Cemetery owner E. Glenn Porter III filed a lawsuit challenging a 1939 state law that he says prohibited him from expanding his business in violation of his rights to equal protection and due process.

His petition calling for re-examination of the law was denied by the state and its Funeral Directors Examining Board on grounds 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, represented by Richard Esenberg, appealed but the lower courts also denied his petition.

The Wisconsin Supreme Court affirmed in a 5-2 decision Wednesday after hearing oral arguments in April.

“Both funeral establishment directors and cemetery operators serve a particularly vulnerable class of consumers: those who have suffered the loss of a loved one. Both funeral establishment directors and cemetery operators are subject to trusting requirements for the products and services they sell,” Justice Abrahamson wrote.

She continued, “The unique characteristics of funeral establishment directors and cemetery operators ‘reasonably suggest’ that the anticombination laws serve the public good by protecting vulnerable consumers and making it more difficult for funeral directors and cemetery operators to disguise the commingling of funds with different trusting requirements.”

Justice Rebecca Bradley, joined by Justice Daniel Kelly, dissented from the majority.

“Because government exists to protect and safeguard liberty, the legislature may restrict it only for a legitimate government purpose. Applying even the most deferential review of the laws challenged in this case, we discern no legitimate government interest underlying the anti-combination statutes,” Bradley wrote.

Wisconsin Assistant Attorney General Ryan Walsh and Porter’s attorney, Esenberg, did not immediately respond Wednesday to email requests for comment on the ruling.

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