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

Case Number: 2014-CV-1763 (Circuit Court); 2016-AP-1599

Filed On: August 22, 2014

Current Status: Judgment for defendants; affirmed on appeal; petition to Wisconsin Supreme Court pending

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.  We petitioned the Wisconsin Supreme Court to hear the case.

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