E. Glenn Porter, III & Highland Mem'l Park, Inc. v. State

Citation902 N.W.2d 566,2017 WI App 65,378 Wis.2d 117
Decision Date29 August 2017
Docket NumberAppeal No. 2016AP1599.
Parties E. Glenn PORTER, III and Highland Memorial Park, Inc., Plaintiffs-Appellants, v. STATE of Wisconsin, Dave Ross and Wisconsin Funeral Directors Examining Board, Defendants-Respondents.
CourtCourt of Appeals of Wisconsin

378 Wis.2d 117
902 N.W.2d 566
2017 WI App 65

E. Glenn PORTER, III and Highland Memorial Park, Inc., Plaintiffs-Appellants,
v.
STATE of Wisconsin, Dave Ross and Wisconsin Funeral Directors Examining Board, Defendants-Respondents.

Appeal No. 2016AP1599.

Court of Appeals of Wisconsin.

Oral Argument: June 19, 2017
Opinion Filed: August 29, 2017


On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Richard M. Esenberg, Michael Fischer, Thomas C. Kamenick and Clyde Taylor of Wisconsin Institute For Law & Liberty, Milwaukee. There was oral argument by Richard M. Esenberg.

On behalf of the defendants-respondents, the cause was submitted on the brief of Gabe Johnson-Karp, assistant attorney general, and Brad D. Schimel, attorney general. There was oral argument by Gabe Johnson-Karp.

Before Stark, P.J., Hruz and Seidl, JJ.

STARK, P.J.

378 Wis.2d 125

¶1 In this appeal, E. Glenn Porter, III and Highland Memorial Park, Inc.,1 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 State2 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."

¶2 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 State.

BACKGROUND

¶3 For purposes of this case, the term "the anti-combination laws" refers to WIS. STAT. §§ 157.067(2) and

378 Wis.2d 126

445.12(6) (2015-16).3 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
902 N.W.2d 570
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 funeral establishment.

Section 445.12(6) provides:

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.

¶4 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

378 Wis.2d 127

in conjunction with his existing cemetery operations. However, the anti-combination laws prevent him from doing so.

¶5 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 government interest.

¶6 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.

¶7 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

378 Wis.2d 128

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

902 N.W.2d 571

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.

¶8 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

378 Wis.2d 129

matter, because ... there's enough information before the court that the court finds the law is constitutional."

STANDARDS OF REVIEW

¶9 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).

¶10 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. , ––– U.S. ––––, 136 S.Ct. 2464, 195 L.Ed.2d 805 (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 337.

¶11 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,...

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3 cases
  • Porter v. State
    • United States
    • Wisconsin Supreme Court
    • June 27, 2018
    ...a time in their lives when they may be particularly vulnerable to questionable marketing influences due to the loss of loved ones." Porter, 378 Wis. 2d 117, ¶ 34, 902 N.W.2d 566.¶ 42 Moreover, the State's expert, Jeffrey Sundberg, explained at length how the anti-combination laws advanced t......
  • Manthe v. Department of Transportation
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    ...challenge, we generally employ one of two different levels of scrutiny, strict scrutiny or rational basis scrutiny. See Porter v. State , 2017 WI App 105, ¶14, 378 Wis. 2d 117, 902 N.W.2d 566. Strict scrutiny applies if a statutory classification implicates a fundamental interest or disadva......
  • D. R. v. B. D. (In re M. L. D.)
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    • February 20, 2019
    ...a substantive due process argument. See, e.g. , Dane Cty. DHS v. P.P. , 2005 WI 32, ¶¶15-22, 279 Wis. 2d 169, 694 N.W.2d 344 ; Porter v. State , 2017 WI App 65, ¶¶14-15, 378 Wis. 2d 117, 902 N.W.2d 566. In fact, at times it is not even clear whether Brandon is making a procedural or substan......

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