E. Glenn Porter, III and Highland Memorial Park, Inc., Plaintiffs-Appellants,
State of Wisconsin, Dave Ross and Wisconsin Funeral Directors Examining Board, Defendants-Respondents.
from an order of the circuit court for Waukesha County: No.
2014CV1763 PATRICK C. HAUGHNEY, Judge. Affirmed.
Stark, P.J., Hruz and Seidl, JJ.
In this appeal, E. Glenn Porter, III and Highland Memorial
Park, Inc.,  contend two statutes, which the parties
refer to as the "anti-combination laws, " are
facially unconstitutional on equal protection and substantive
due process grounds. Generally speaking, the anti-combination
laws prohibit the joint ownership or operation of a cemetery
and a funeral home. The State asserts the anti-combination laws
survive rational basis scrutiny and are therefore
constitutionally permissible. Porter agrees the
anti-combination laws are subject to rational basis review;
however, he urges us to apply a more stringent form of
rational basis scrutiny, sometimes referred to as
"rational basis with bite."
We conclude that, whether analyzed using traditional rational
basis scrutiny or a so-called "rational basis with
bite" standard, the anti-combination laws pass
constitutional muster, in that Porter has failed to show
beyond a reasonable doubt they are not rationally related to
a legitimate government interest. We therefore affirm the
circuit court's order granting summary judgment to the
For purposes of this case, the term "the
anti-combination laws" refers to WIS . STAT .
§§ 157.067(2) and 445.12(6)
(2015-16). Section 157.067(2) provides:
No cemetery authority may permit a funeral establishment to
be located in the cemetery. No cemetery authority may have or
permit an employee or agent of the cemetery to have any
ownership, operation or other financial interest in a funeral
establishment. Except as provided in sub. (2m), no cemetery
authority or employee or agent of a cemetery may, directly or
indirectly, receive or accept any commission, fee,
remuneration or benefit of any kind from a funeral
establishment or from an owner, employee or agent of a
No licensed funeral director or operator of a funeral
establishment may operate a mortuary or funeral establishment
that is located in a cemetery or that is financially, through
an ownership or operation interest or otherwise, connected
with a cemetery. No licensed funeral director or his or her
employee may, directly or indirectly, receive or accept any
commission, fee, remuneration or benefit of any kind from any
cemetery, mausoleum or crematory or from any owner, employee
or agent thereof in connection with the sale or transfer of
any cemetery lot, outer burial container, burial privilege or
cremation, nor act, directly or indirectly, as a broker or
jobber of any cemetery property or interest therein.
Porter is the president and one of the principal owners of
Highland Memorial Park, a cemetery located in New Berlin,
Wisconsin. Porter would like to expand his business by
operating a funeral establishment in conjunction with his
existing cemetery operations. However, the anti-combination
laws prevent him from doing so.
As a result, Porter filed this lawsuit, asserting the
anti-combination laws are facially unconstitutional on
substantive due process and equal protection grounds. In
support of his substantive due process claim, Porter alleged
the anti-combination laws "arbitrarily and irrationally
prevent cemetery operators from owning an interest in a
funeral establishment and owners and operators of funeral
establishments from having an ownership interest in a
cemetery." Porter further contended the laws infringe on
his right to earn a living and do not further any legitimate
Porter's equal protection claim alleged the
anti-combination laws "create anticompetitive,
irrational, and arbitrary distinctions between classes of
Wisconsin citizens, " in that only cemetery operators
are prohibited from operating or obtaining ownership
interests in funeral establishments, and only funeral
directors are prohibited from obtaining ownership interests
in cemeteries. Porter alleged there is "no reasonable
basis" for these classifications, and they serve
"no legitimate governmental purpose." As relief,
Porter sought: (1) a declaratory judgment that the
anti-combination laws violate equal protection and
substantive due process; (2) an order permanently enjoining
the State from enforcing the anti-combination laws; and (3)
reasonable costs and attorney fees.
The State moved for summary judgment, arguing rational basis
scrutiny applied to both of Porter's claims because he
had not alleged the creation of a suspect class or the
violation of a fundamental right. The State asserted the
anti-combination laws survived rational basis review because
they were rationally related to three legitimate government
interests-"preserving competition in the death care
services industry, protecting consumers from higher prices
and poor service, and reducing the potential for abuses from
commingling of cemetery and funeral revenues." In
support of its motion, the State submitted, among other
things, a report authored by economics professor Jeffrey
Sundberg, who opined to a reasonable degree of professional
certainty that the anti-combination laws serve the
State's claimed government interests. In response, Porter
relied primarily on a report and affidavit authored by
economics professor David Harrington, who opined to a
reasonable degree of professional certainty that the
anti-combination laws do not actually advance the State's
claimed interests. Porter argued any dispute as to that issue
created a material question of fact requiring a trial.
The circuit court granted summary judgment in favor of the
State. The court concluded the anti-combination laws are
constitutional because they are rationally related to a
number of legitimate government interests-namely,
"preserving competition, avoiding commingling of funds,
preserving consumer choices, avoiding higher prices,
fostering personal service, [and] avoiding undue pressure on
consumers." The court explained it was "satisfied
… that if there are arguments over whether some of
this works or some of that doesn't work, it stands as
proof then that there is a basis for the law." The court
emphasized it was "not supposed to decide whether or not
one type of law is better than the other, but only whether or
not there's a rational basis for it." Given the
court's determination there was a rational basis for the
anti-combination laws, it concluded it did not "need to
go beyond summary judgment and to have a trial on the matter,
because … there's enough information before the
court that the court finds the law is constitutional."
We independently review a grant of summary judgment, applying
the same standard as the circuit court. Hardy v.
Hoefferle, 2007 WI.App. 264, ¶6, 306 Wis.2d 513,
743 N.W.2d 843. Summary judgment is appropriate if "the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a
matter of law." Wis.Stat. § 802.08(2).
Porter raises a facial challenge to the constitutionality of
the anti- combination laws. "A facial constitutional
challenge to a statute is an uphill endeavor." State
v. Dennis H., 2002 WI 104, ¶5, 255 Wis.2d 359, 647
N.W.2d 851. To succeed, Porter must demonstrate the
anti-combination laws cannot be constitutionally enforced
under any circumstances. See Winnebago Cty. v.
Christopher S., 2016 WI 1, ¶34, 366 Wis.2d 1, 878
N.W.2d 109, cert. denied sub nom. Christopher S. v.
Winnebago Cty., Wis., 136 S.Ct. 2464 (2016). The
constitutionality of a statute presents a question of law
that we review independently. Madison Teachers, Inc. v.
Walker, 2014 WI 99, ¶13, 358 Wis.2d 1, 851 N.W.2d
In assessing Porter's constitutional claims, we presume
the anti- combination laws are constitutional. See Blake
v. Jossart, 2016 WI 57, ¶27, 370 Wis.2d 1, 884
N.W.2d 484, cert. denied, 137 S.Ct. 669 (2017). To
overcome this presumption, Porter must demonstrate the laws
are unconstitutional beyond a reasonable doubt. Id.
"It is not sufficient for the challenging party merely
to establish doubt about a statute's constitutionality,
and it is not enough to establish that a statute probably is
unconstitutional." Id. (quoting Aicher ex
rel. LaBarge v. Wisconsin Patients Comp. Fund, 2000 WI
98, ¶19, 237 Wis.2d 99, 613 N.W.2d 849');">613 N.W.2d 849). If there is any
doubt regarding a statute's constitutionality, we resolve
that doubt in favor of upholding the statute. Id.
As noted above, Porter argues the anti-combination laws are
unconstitutional on two grounds. First, he contends the laws
violate his constitutional right to substantive due process.
The right to substantive due process is "rooted in the
Fourteenth Amendment to the United States Constitution, and
Article I, Section 1 of the Wisconsin
Constitution." State v. Wood, 2010 WI 17,
¶17, 323 Wis.2d 321, 780 N.W.2d 63');">780 N.W.2d 63. Substantive due
process "addresses 'the content of what government
may do to people under the guise of the law.'"
Dane Cty. DHS v. Ponn P., 2005 WI 32, ¶19, 279
Wis.2d 169, 694 N.W.2d 344 (quoting Reginald D. v.
State, 193 Wis.2d 299, 307, 533 N.W.2d 181 (1995)). It
protects against government action that shocks the conscience
or interferes with rights implicit in the concept of ordered
liberty. Id. Stated differently, it protects against
state action that is "arbitrary, wrong or oppressive,
regardless of whether the procedures applied to implement the
action were fair." Id.
Second, Porter argues the anti-combination laws violate his
constitutional right to equal protection of the laws.
See U.S. Const. amend XIV, § 1; Wis . Const .
art. I, § 1. To demonstrate unconstitutionality on this
basis, Porter must show that the anti-combination laws
"treat members of similarly situated classes
differently." See Blake, 370 Wis.2d 1,
¶30. "The right to equal protection does not
require that such similarly situated classes be treated
identically, but rather requires that the distinction made in
treatment have some relevance to the purpose for which
classification of the classes is made." State v.
West, 2011 WI 83, ¶90, 336 Wis.2d 578, 800 N.W.2d
When a statute is challenged on substantive due process or
equal protection grounds, a court must first determine which
level of judicial scrutiny to apply. State v. Alger,
2015 WI 3, ¶39, 360 Wis.2d 193, 858 N.W.2d 346');">858 N.W.2d 346.
"Whether reviewing substantive due process or equal
protection, the threshold question is whether a fundamental
right is implicated or whether a suspect classis disadvantaged
by the challenged legislation." State v. Smith,
2010 WI 16, ¶12, 323 Wis.2d 377, 780 N.W.2d 90');">780 N.W.2d 90. If a
statute implicates a fundamental right or disadvantages a
suspect class, "the challenged legislation must survive
strict scrutiny." Id. Under strict scrutiny, a
law will be upheld only if it is narrowly tailored to serve a
compelling state interest. Alger, 360 Wis.2d 193,
If a challenged law does not implicate a fundamental right or
disadvantage a suspect class, courts generally apply rational
basis scrutiny. Smith, 323 Wis.2d 377, ¶12.
Under rational basis scrutiny, we will uphold a challenged
law unless it is patently arbitrary and bears no rational
relationship to a legitimate government interest.
It is undisputed the anti-combination laws do not affect any
fundamental right or disadvantage a suspect class.
Accordingly, the parties agree we should analyze the
laws' constitutionality using rational basis scrutiny.
However, while agreeing in principle that rational basis
scrutiny is appropriate, the parties dispute how, precisely,
rational basis scrutiny should be applied under the specific
circumstances of this case.
The State urges us to apply what we will refer to as
"traditional" rational basis scrutiny. In other
words, the State argues our review is limited to determining
whether the anti-combination laws are rationally related to
some legitimate government interest. See id. The
State emphasizes that, on traditional rational basis review,
a court must "identify or, if necessary, construct a
rationale supporting the legislature's determination,
" regardless of whether that rationale actually
influenced the legislature to pass the challenged law.
Blake, 370 Wis.2d 1, ¶32. The State also cites
FCC v. Beach Communications, Inc., 508 U.S. 307, 315
(1993), in which the United States Supreme Court stated,
"[L]egislative choice is not subject to courtroom
fact-finding and may be based on rational speculation
unsupported by evidence or empirical data." The State
further notes the rational basis test "does not require
the legislature to choose the best or wisest means to achieve
its goals. Deference to the means chosen is due even if the
court believes that the same goal could be achieved in a more
effective manner." Ferdon ex rel. Petrucelli v.
Wisconsin Patients Comp. Fund, 2005 WI 125, ¶76,
284 Wis.2d 573, 701 N.W.2d 440');">701 N.W.2d 440 (footnotes omitted); see
also Monarch Beverage Co. v. Cook, 861 F.3d 678, 685
(7th Cir. 2017) (stating the United States Supreme Court has
"never invalidated an economic regulation on
rational-basis review because a more direct or effective
policy alternative was available").
Applying these principles, the State argues on appeal that
the anti- combination laws satisfy rational basis scrutiny
because they are conceivably related to two legitimate
government interests: protecting consumers from increased
prices, and limiting or minimizing the manipulation of funds
required to be held in trust by funeral directors and
cemetery operators. The State asserts the identification of
these "conceivable, rational" bases for the
anti-combination laws should end our analysis.
Porter, in contrast, argues something more is required for
the anti- combination laws to satisfy rational basis review.
Porter asserts, and the State does not dispute, that the
anti-combination laws were enacted decades ago at the behest
of the Wisconsin Funeral Directors and Embalmers Association.
Porter contends the laws were (and continue to be) a
protectionist measure intended to insulate funeral directors
from competition by combination firms-i.e., firms providing
both funeral home and cemetery services. Because there is
evidence showing there was a protectionist motive for the
enactment of the anti-combination laws, Porter argues we must
view the laws with a more skeptical eye. Citing
Ferdon, Porter asserts that, instead of simply
asking whether the anti-combination laws are rationally
related to some legitimate government objective, we must
consider whether the laws have a "real and substantial
relationship" to such an objective. In other words,
Porter argues the anti-combination laws survive rational
basis review only if the evidence shows the laws actually-not
just conceivably-advance a legitimate government interest. As
Porter notes, this evidence-based form of rational basis
review is sometimes referred to as "rational basis with
teeth" or "rational basis with bite." See
Ferdon, 284 Wis.2d 573, ¶78.
Porter relies on several cases in support of his argument
that we should employ a "rational basis with bite"
analysis in the instant case, rather than the traditional
rational basis analysis espoused by the State. Perhaps the
most persuasive of these cases are State ex rel. Grand
Bazaar Liquors, Inc. ...