Equal Protection Violation

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WI Supreme Court

Case Name: E. Glen Porter, III, et al. v. State of Wisconsin, et al.

Case No.: 2018 WI 79

Focus: Equal Protection Violation

This is a review of a published decision of the court of appeals affirming a judgment of the Circuit Court for Waukesha County, Patrick C. Haughney, Judge. The plaintiffs-appellants-petitioners, E. Glenn Porter, III, and Highland Memorial Park, Inc., challenge the constitutionality of two statutes: Wis. Stat. §§ 157.067(2) and 445.12(6) (2015-16). The parties refer to these two statutes as the “anti-combination laws.” Generally, these laws prohibit the joint ownership or operation of a cemetery and a funeral home. Porter argues that the anti-combination laws violate his rights to equal protection and substantive due process under the Wisconsin and United States constitutions.

In the circuit court, the State moved for summary judgment. It argued that rational basis scrutiny applied to Porter’s claims because he had not alleged the creation of a suspect class or the violation of a fundamental right. See Aicher ex rel. LaBarge v. Wis. Patients Comp. Fund, 2000 WI 98, ¶56, 237 Wis. 2d 99, 613 N.W.2d 849. The State asserted that the anti-combination laws survived rational basis review because they were rationally related to three legitimate government interests: (1) preserving competition in the death care services industry; (2) protecting consumers from higher prices and poor services; and (3) reducing the potential for abuses from commingling of cemetery and funeral revenues.

The circuit court granted the State’s motion for summary judgment. It concluded that 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 circuit court explained that 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 . . . .”

Porter appealed. The parties disagreed on the proper scope of rational basis review and whether the anti-combination laws have a rational basis. The court of appeals held that regardless of the scope of rational basis review employed, the anti-combination laws were not unconstitutional on either equal protection or substantive due process grounds. The court of appeals explained that the anti-combination laws were rationally related to the legitimate government interests of protecting consumers and limiting the possibility for abuse of trusting requirements.

Applying the standard set forth in Mayo v. Wisconsin Injured Patients & Families Compensation Fund, 2018 WI 78, ___ Wis. 2d ___, ___ N.W.2d ___, we conclude that the anti-combination statutes do not violate the equal protection or due process clauses of the Wisconsin and United States constitutions. 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. Accordingly, we affirm the decision of the court of appeals.

Affirmed

Concur:

Dissent: R.G. BRADLEY, J., and KELLY, J., dissent (opinion filed).

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.