E. Glen Porter, III v. State of Wisconsin
913 N.W.2d 842
Wis.2018Background
- E. Glenn Porter (owner of Highland Memorial Park cemetery) sued to invalidate Wisconsin's "anti‑combination" statutes, Wis. Stat. §§ 157.067(2) and 445.12(6), which bar joint ownership/operation of cemeteries and funeral establishments.
- Porter raised facial equal‑protection and substantive due‑process challenges, arguing the laws arbitrarily prevent cemetery owners from operating funeral homes and deny economic liberty.
- The State defended under rational‑basis review, asserting legitimate interests: (1) protecting consumers by preventing anti‑competitive vertical integration/foreclosure and (2) minimizing manipulation of funds subject to statutory trust requirements.
- At summary judgment the State submitted an economist (Sundberg) opining the laws reduce foreclosure risk and commingling; Porter submitted a contrary economist (Harrington) arguing combination firms yield efficiencies and no evidence of foreclosure in other states.
- The circuit court granted summary judgment for the State; the court of appeals affirmed. The Wisconsin Supreme Court (majority) applied the Mayo rational‑basis framework and affirmed; two justices dissented urging greater protection for economic liberty.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the anti‑combination statutes violate equal protection (facial challenge) | Porter: statutes arbitrarily discriminate against cemetery owners, lacking rational relation to legitimate ends | State: statutes classify reasonably and are rationally related to protecting consumers and preventing trust abuse | Court: statutes satisfy the five‑part rational‑basis test (Mayo) and are constitutional |
| Whether the statutes violate substantive due process / economic liberty | Porter: statutes infringe fundamental economic liberty (right to earn a living) and are protectionist | State: no fundamental right implicated; at most rational‑basis review applies and interests are legitimate | Court: applied rational‑basis framework (declining heightened scrutiny) and upheld statutes; dissent argued economic liberty is fundamental and statutes lack legitimate basis |
| Proper standard of review (traditional rational basis vs. "rational basis with teeth" or strict scrutiny) | Porter: urges "rational basis with teeth" or strict scrutiny because law burdens economic liberty | State: traditional rational‑basis applies; statutes pass any reasonable rational‑basis test | Court: adopted Mayo five‑part rational‑basis test and declined to apply Ferdon "with teeth" standard; left strict‑scrutiny economic‑liberty argument for another case |
| Whether summary judgment was appropriate or remand for factfinding required | Porter: expert conflicts create genuine issue of material fact precluding summary judgment | State: Sundberg's opinion provides a sufficient rational basis; expert dispute does not require remand | Court: affirmed summary judgment — Sundberg's analysis supplies an adequate rational basis and plaintiffs' contrary expert did not compel trial |
Key Cases Cited
- Aicher ex rel. LaBarge v. Wisconsin Patients Comp. Fund, 237 Wis. 2d 99 (Wis. 2000) (standards for constitutional review and presumption of constitutionality)
- Ferdon ex rel. Petrucelli v. Wisconsin Patients Compensation Fund, 284 Wis. 2d 573 (Wis. 2005) (articulated a more exacting "rational basis with teeth" approach that the court declined to retain)
- State v. Dennis H., 255 Wis. 2d 359 (Wis. 2002) (facial constitutional‑challenge principles)
- Carlson & Erickson Builders, Inc. v. Lampert Yards, Inc., 190 Wis. 2d 650 (Wis. Ct. App. 1995) (legislative power to prevent monopolistic practices under police power)
- John F. Jelke Co. v. Emery, 193 Wis. 311 (Wis. 1927) (invalidating protectionist legislation favoring an industry)
- Dairy Queen of Wis., Inc. v. McDowell, 260 Wis. 471 (Wis. 1952) (rejecting statutes enacted primarily to protect a discrete industry from competition)
- State ex rel. Grand Bazaar Liquors, Inc. v. City of Milwaukee, 105 Wis. 2d 203 (Wis. 1982) (striking municipal ordinance as arbitrary and not rationally related to its objective)