Wisconsin Supreme Court upholds ban on joint ownership of cemeteries, funeral homes

MADISON — The Wisconsin Supreme Court on Wednesday upheld the state’s ban on joint ownership of cemeteries and funeral homes, rejecting a lawsuit from a cemetery owner who argued that the prohibition is anti-competitive, irrational and unconstitutional.

The court’s 5-2 ruling upheld a state appeals court decision from last year rejecting the lawsuit filed by Highland Memorial Park, a cemetery in New Berlin, and its owner E. Glenn Porter.

Justice Shirley Abrahamson, writing for the majority, said the laws in question do not violate equal protection clauses of the state or U.S. constitutions. Abrahamson wrote that the laws are “rationally related to the legitimate government interests” of protecting vulnerable customers. They also limit or minimize the manipulation of money required to be held in trust by funeral directors and cemetery operators, she wrote.

Justices Dan Kelly and Rebecca Bradley dissented, saying there’s no rational basis connecting the laws to a legitimate government interest. They argued the laws should be declared unconstitutional.

Porter, the cemetery owner, said in a statement that he was disappointed with the ruling.

“Despite their statements to the contrary, maintaining the prohibition against the joint ownership of cemeteries and funeral homes will continue to limit consumer choices and increase consumer costs,” he said.

A spokesman for the Department of Justice, which defended the laws, praised the ruling.

“We are pleased that the Constitution was respected and that this ordinary economic regulation, duly enacted by the Legislature, was upheld,” said spokesman Johnny Koremenos.

Porter, the cemetery owner, wants to expand the business and offer funeral services in addition to the cemetery. He argued that Wisconsin’s laws banning joint ownership are overly restrictive and prevent cemetery owners and funeral home directors from conducting business as they see fit.

He said the laws are unconstitutional on due process and equal protection grounds.

The state argued that so-called “anti-combination” laws preserve competition, protect consumers from higher prices and reduce the potential for abuses of mixing cemetery and funeral revenues required to be held in trust.

The Waukesha County circuit court sided with the state and summarily rejected the cemetery’s lawsuit in 2016. A state appeals court agreed in 2017 and the Supreme Court upheld that ruling.