Read more here:     http://docs.legis.wisconsin.gov/raw/proposal/2019/-1722


June 27, 2018 – MILWAUKEE, WI – The Wisconsin Supreme Court issued a decision Wednesday in the case of Porter v. State of Wisconsin.

WILL President and General Counsel Rick Esenberg said:

“We are deeply disappointed in today’s result. The right of a citizen to pursue a legitimate calling is not something that merely exists at the sufferance of the government. As Justice Rebecca Grassl Bradley put it, “Wisconsin’s constitutional guarantee of liberty deserves more respect – a lot more.” 

We will not give up on fighting for the protections of liberty afforded by our state constitution. All Wisconsin residents should be secure in the knowledge that backroom deals and special interests are unable to benefit from blatant economic protectionism.”

Wisconsin law prohibits owners of cemeteries from owning and operating a funeral home and 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 E. Glen Porter, owner of Highland Memorial Park, a cemetery in New Berlin, WILL filed a lawsuit in 2014 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 asked the court to declare Wisconsin’s overly restrictive laws unconstitutional.

WILL’s client Glen Porter, owner of Highland Memorial Park, said:

“I am disappointed that the Wisconsin Supreme Court did not find in our favor. Despite their statements to the contrary, maintaining the prohibition against the joint ownership of cemeteries and funeral homes will continue to limit consumer choices and increase consumer costs.”

If the courts won’t or can’t act, then the legislature and the people should. Whether by statute or constitutional amendment, Wisconsin should make clear that politicians do not have unlimited power over the right of citizens to work or to engage in an otherwise lawful business. It should make clear that, when the government seeks to restrict that right, it has to have a good reason.


Wisconsin Supreme Court Takes WILL Case Challenging Wisconsin’s Law Prohibiting Cemeteries from Operating Funeral Homes

State law is unconstitutional, an unnecessary impediment to competition, free markets

January 12, 2018 – Milwaukee, WI – The Wisconsin State Supreme Court has decided to take Porter v. Wisconsin, a lawsuit challenging Wisconsin’s prohibition on joint ownership of cemeteries and funeral homes. This anticompetitive law was passed at the behest of funeral directors during the 1930’s to protect themselves from a new form of business: combination firms that operated cemeteries as well as funeral homes. Combination firms are now common in most states, but they are still forbidden from doing business in Wisconsin.

On behalf of Highland Memorial Park, a cemetery in New Berlin, the Wisconsin Institute for Law & Liberty 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 in August of 2014. We argue that the facts show that the law is protectionist and does not serve any legitimate governmental purpose. The State supports it by offering mere speculation about some ways in which Wisconsin consumers might be harmed. But combination firms operate almost everywhere without any actual evidence that any of these possible harms have ever actually occurred, anywhere or any time.

WILL President and General Counsel Rick Esenberg noted that “the case is not about judicial activism or asking courts to substitute their judgment for that of the legislature. The state’s police power does not allow it to impair the right to earn a living or pursue a lawful business without some reasonable justification. The state has no business favoring one group of competitors over another.”

The law does nothing more than protect funeral directors from competition. It prevents innovation in the funeral services industry and deprives 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. The law deprives cemetery owners and, for that matter, funeral directors themselves, from freely conducting their businesses in the way they think will best serve their customers.

Case background and documents can be found here.

At the outset of the lawsuit, WILL Senior Counsel Mike Fischer stated, “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. 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.”

Oral arguments in the case will be heard this spring with the court issuing a decision this summer.


Wisconsin Chapter 157 the Cemetery Statutes: (go to Subchapter II for Cemeteries) http://docs.legis.wisconsin.gov/statutes/statutes/157

Wisconsin Chapter 440: (go to Subchapter VII for Crematory Authorities and to Subchapter IX for Cemetery Authorities, Salespersons and Preneed Sellers) http://docs.legis.wisconsin.gov/statutes/statutes/440


Wisconsin Cemetery Board Main Page: https://dsps.wi.gov/Pages/BoardsCouncils/Cemetery/Default.aspx

Professional Licenses

Cemetery Association Page: https://dsps.wi.gov/Pages/Professions/CemeteryAssociation/Default.aspx

Cemetery Authority Page: https://dsps.wi.gov/Pages/Professions/CemeteryAuthorityLicensed/Default.aspx

Cemetery Preneed Seller Page: https://dsps.wi.gov/Pages/Professions/CemeteryPreneedSeller/Default.aspx

Cemetery Salesperson Page: https://dsps.wi.gov/Pages/Professions/CemeterySalesperson/Default.aspx



Wisconsin Funeral and Cemetery Aids Program: http://www.dhs.wisconsin.gov/em/WFCAP/index.htm