Highland Memorial v. Wisconsin

Case Name: Highland Memorial Park v. State of Wisconsin

Type of Case: Economic Liberty

Court: Waukesha County Circuit Court; District III Court of Appeals; Wisconsin Supreme Court

Case Number: 2014-CV-1763 (Circuit Court); 2016-AP-1599 (Court of Appeals & Supreme Court)

Filed On: August 22, 2014

Current Status: Judgment for defendants; upheld on appeal; Wisconsin Supreme Court oral argument 4/19/2018

Wisconsin, like most states, regulates the funeral home and cemetery business.  But unlike most states, Wisconsin prohibits owners of cemeteries from owning and operating a funeral home.  Wisconsin even goes so far as to prohibit cemetery owners from allowing an independently operated funeral home to be located on cemetery property.

On behalf of Highland Memorial Park, a cemetery in New Berlin, WILL filed a lawsuit in Waukesha County against the State of Wisconsin, the Secretary of the Department of Safety and Professional Services, and the Wisconsin Funeral Directors Examining Board.  The lawsuit asks the court to declare Wisconsin’s overly restrictive laws unconstitutional.

The circuit court granted summary judgment to the defendants, dismissing the case.  We had asked the judge to hold a trial so we could prove that these laws actually harm consumers, but the judge disagreed.  He decided that because there was a mere remote possibility that the law could help consumers, it didn’t matter whether as a practical matter they actually hurt.

We appealed, and the court of appeals held oral argument, which is rare.  The court affirmed, holding that we had failed to demonstrate that the law was constitutional beyond a reasonable doubt and refusing to permit us to develop a further factual record.

The Wisconsin Supreme Court has agreed to hear the case, and briefing is currently pending.  Oral argument will be held on April 19, 2018, and a decision is likely to come in June or July.

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