WILL Challenges State Law Banning Shared Ownership of Cemeteries and Funeral Homes

Published on: August 22, 2014

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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.

These laws stand in the way of cemetery owners who wish to better serve bereaved families by offering them more comprehensive services at a single location.  The comprehensive services that can be offered by firms that combine cemetery and funeral home operations have proved to benefit such families in the many states that do not stand in their way.

Wisconsin should join them.  Its overly restrictive laws do nothing more than protect funeral directors from competition.  They prevent innovation in the funeral services industry and deprive consumers of the benefits that could be achieved by firms that are better able to provide them with the range of services they may need.  These laws deprive cemetery owners and, for that matter, funeral directors themselves, from freely conducting their businesses in the way they think will best serve their customers.

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 funeral services business is a business like any other.  The Wisconsin Constitution protects people’s right to earn a living and engage in business in the manner of their choosing,” said Michael Fischer, Senior Council at WILL.  “And Wisconsin consumers, who spend millions of dollars on funeral services every year, should be able to work with a firm that offers them the comprehensive and innovative services they need. Government cannot limit their choices without demonstrating that a regulation is needed to protect the public health, safety or welfare.  These laws are not.”

“Many of our clients tell me they wish they could buy all of their services from one location, and we would certainly like to offer them the ability to do so” said E. Glen Porter III, plaintiff and President of Highland Memorial Park.  “Instead they have to deal with a funeral director to obtain their services and a cemetery to arrange for burial.  Why can’t they attend to all of their needs in a single transaction if that’s what they want?”

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