MADISON, Wis. — Wisconsin’s ban on joint ownership of cemeteries and funeral homes is constitutional, a state appeals court ruled Tuesday, rejecting a lawsuit that argued the prohibition was anti-competitive and irrational.

The ruling from the 2nd District Court of Appeals sets the stage for the Wisconsin Supreme Court to take up the issue.

Highland Memorial Park, a cemetery in New Berlin, sued the state in 2014, arguing Wisconsin laws banning joint ownership are unconstitutional, arbitrary, anti-competitive and irrational. The conservative law firm Wisconsin Institute for Law and Liberty represented the cemetery and its principal owner E. Glenn Porter.

Porter 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. The appeals court on Tuesday agreed, saying the cemetery “failed to show beyond a reasonable doubt (the laws) are not rationally related to a legitimate government interest.”

But the appeals court also stressed that its decision was not a commentary on the wisdom of the laws or whether they are the best way to protect consumers.

“The wisdom and efficacy of the anti-combination laws are issues for the legislature, not this court, to decide,” Appeals Court Judge Lisa Stark wrote for the three-judge panel.

Johnny Koremenos, a spokesman for the state Department of Justice which defended the laws, said Attorney General Brad Schimel was pleased with the ruling.

Rick Esenberg, president of WILL and the attorney who represented the cemetery, said he will ask the state Supreme Court to review the decision.

Esenberg said it sets up the issue of when state government has to justify what it’s doing when it enacts laws that favor one class of competitors over another that “restrict your liberty, particularly your right to earn a living.”


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