Case Name: Highland Memorial Park v. State of Wisconsin

Type of Case: Economic Liberty

Court: Waukesha County Circuit Court; District III Court of Appeals; Wisconsin Supreme Court

Case Number: 2014-CV-1763 (Circuit Court); 2016-AP-1599 (Court of Appeals & Supreme Court)

Filed On: August 22, 2014

Current Status: Anti-combo law upheld by Wisconsin Supreme Court

Wisconsin, like most states, regulates the funeral home and cemetery business.  But unlike most states, Wisconsin prohibits owners of cemeteries from owning and operating a funeral home.  Wisconsin even goes so far as to prohibit cemetery owners from allowing an independently operated funeral home to be located on cemetery property.

On behalf of Highland Memorial Park, a cemetery in New Berlin, WILL filed a lawsuit in Waukesha County against the State of Wisconsin, the Secretary of the Department of Safety and Professional Services, and the Wisconsin Funeral Directors Examining Board.  The lawsuit asks the court to declare Wisconsin’s overly restrictive laws unconstitutional.

The circuit court granted summary judgment to the defendants, dismissing the case.  We had asked the judge to hold a trial so we could prove that these laws actually harm consumers, but the judge disagreed.  He decided that because there was a mere remote possibility that the law could help consumers, it didn’t matter whether as a practical matter they actually hurt.

We appealed, and the court of appeals held oral argument, which is rare.  The court affirmed, holding that we had failed to demonstrate that the law was constitutional beyond a reasonable doubt and refusing to permit us to develop a further factual record.

The Wisconsin Supreme Court affirmed, 5-2.  The majority applied a cursory analysis that explicitly refused to consider any of our evidence and failed to address any of the numerous past cases we raised in which the Court struck down economic regulation by looking at its actual effect.  Justices Dan Kelly and Rebecca Grassl Bradley, in dissent, would have applied strict scrutiny because the anti-combination laws impaired people’s fundamental right to earn a living, and also concluded that even under rational basis, the State’s arguments for the law were illogical.

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