Porter v. State
902 N.W.2d 566
Wis. Ct. App.2017Background
- Plaintiff E. Glenn Porter III (owner of Highland Memorial Park cemetery) sued to invalidate Wisconsin's "anti-combination" statutes (Wis. Stat. §§ 157.067(2) and 445.12(6)) that bar joint ownership/operation and certain financial dealings between cemeteries and funeral establishments.
- Porter sought declaratory and injunctive relief, arguing the statutes violate substantive due process and equal protection by irrationally restricting his right to earn a living and creating arbitrary, anticompetitive classifications.
- The State defended under rational-basis review, arguing the laws are rationally related to legitimate interests: preserving competition/avoiding foreclosure-driven price increases and preventing commingling/abuse of trust funds tied to pre-need sales.
- Each side submitted a single economics expert: the State’s Jeffrey Sundberg (opined laws plausibly prevent foreclosure and commingling abuses) and Porter’s David Harrington (opined laws increase costs and foreclosure/abuse are unlikely or unsupported by evidence).
- The circuit court granted summary judgment for the State, finding a rational basis for the statutes; the court of appeals affirmed, holding Porter failed to prove unconstitutionality beyond a reasonable doubt under either traditional rational-basis review or the more probing "rational basis with bite" approach.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the anti-combination laws violate substantive due process or equal protection | Porter: Laws arbitrarily restrict economic liberty and create irrational, protectionist classifications; they do not further any legitimate state interest | State: Laws are subject to rational-basis review and are rationally related to legitimate interests (protect consumers from higher prices; prevent commingling/abuse of trust funds) | Court: Apply rational-basis (traditional or with "bite"); statutes survive—Porter failed to show unconstitutionality beyond a reasonable doubt |
| Appropriate scope of rational-basis review | Porter: Because laws were enacted with protectionist motive, courts should apply "rational basis with bite" (require evidence laws actually further legitimate ends) | State: Traditional rational-basis suffices—court may conceive any plausible justification without evidentiary proof | Court: Need not resolve which approach strictly governs; under either test statutes withstand review |
| Whether factual disputes (expert reports) preclude summary judgment | Porter: Conflicting expert opinions create genuine issues of material fact requiring remand/trial | State: Conflicting expert evidence does not automatically bar summary judgment in constitutional review; plaintiff bears heavy burden | Court: No remand—Porter failed to rebut presumption of constitutionality beyond reasonable doubt; summary judgment appropriate |
| Whether alternative laws or antitrust statutes make these statutes irrational | Porter: Existing antitrust law negates need for protectionist statute; statutes are overbroad and unnecessary | State: Legislature may enact industry-specific prophylaxis despite overlap with antitrust law | Held: Court defers to legislative judgment; existence of other legal remedies does not negate rational basis for statutes |
Key Cases Cited
- State ex rel. Grand Bazaar Liquors, Inc. v. City of Milwaukee, 105 Wis. 2d 203 (Wis. 1982) (courts may treat post hoc legislative justifications skeptically where record shows protectionist motive and must assess whether ordinance actually furthers articulated purposes)
- Ferdon ex rel. Petrucelli v. Wisconsin Patients Comp. Fund, 284 Wis. 2d 573 (Wis. 2005) (articulates "rational basis with bite" and requires meaningful inquiry into whether regulation actually advances asserted objectives)
- Blake v. Jossart, 370 Wis. 2d 1 (Wis. 2016) (presumption of constitutionality and "beyond a reasonable doubt" burden for facial statutory challenges)
- Madison Teachers, Inc. v. Walker, 358 Wis. 2d 1 (Wis. 2014) (constitutional questions are legal issues reviewed independently; legislative motives may be irrelevant under traditional rational-basis review)
- Northwest Airlines, Inc. v. Department of Revenue, 293 Wis. 2d 202 (Wis. 2006) (courts may uphold economic regulation if legislature could have reasonably believed it would further a legitimate interest)
- FCC v. Beach Communications, 508 U.S. 307 (U.S. 1993) (under rational-basis review, legislative judgments may rest on speculation and need not be supported by empirical evidence)