                                                            2018 WI 79

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:               2016AP1599
COMPLETE TITLE:         E. Glen Porter, III and Highland Memorial Park,
                        Inc.,
                                   Plaintiffs-Appellants-Petitioners,
                              v.
                        State of Wisconsin, Laura Gutierrez and
                        Wisconsin Funeral Directors Examining Board,
                                   Defendants-Respondents.

                           REVIEW OF DECISION OF THE COURT OF APPEALS
                          Reported at 378 Wis. 2d 117, 902 N.W.2d 566
                               PDC No: 2017 WI App 65 - Published

OPINION FILED:          June 27, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          April 19, 2018

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Waukesha
   JUDGE:               Patrick C. Haughney

JUSTICES:
   CONCURRED:
   DISSENTED:           R.G. BRADLEY, J., and KELLY, J., dissent
                        (opinion filed).
  NOT PARTICIPATING:


ATTORNEYS:


       For        the   plaintiffs-appellants-petitioners,       there     were
briefs filed by Thomas C. Kamenick, Richard M. Esenberg, Michael
Fischer,        Clyde   Taylor,   and    Wisconsin   Institute   for     Law   &
Liberty, Milwaukee.          There was an oral argument by Richard M.
Esenberg.


       For the defendants-respondents, there was a brief filed by
Ryan J. Walsh, chief deputy solicitor general, with whom on the
brief were Brad D. Schimel, attorney general, and Sopen B. Shah,
deputy solicitor general.         There was an oral argument by Ryan J.
Walsh, chief deputy solicitor general.
    An amicus curiae brief was filed on behalf of Institute for
Justice by Lee U. McGrath, Anthony B. Sanders, and Institute for
Justice, Minneapolis, Minnesota, with whom on the brief were
Erica   Smith   and   Institute   for   Justice,   Arlington,   Virginia.




                                    2
                                                                             2018 WI 79
                                                                     NOTICE
                                                       This opinion is subject to further
                                                       editing and modification.   The final
                                                       version will appear in the bound
                                                       volume of the official reports.
No.       2016AP1599
(L.C. No.    2014CV1763)

STATE OF WISCONSIN                                 :            IN SUPREME COURT

E. Glenn Porter, III and Highland Memorial
Park, Inc.,

              Plaintiffs-Appellants-Petitioners,
                                                                          FILED
      v.
                                                                     JUN 27, 2018
State of Wisconsin, Laura Gutierrez and
Wisconsin Funeral Directors Examining Board,                            Sheila T. Reiff
                                                                     Clerk of Supreme Court
              Defendants-Respondents.




      REVIEW of a decision of the Court of Appeals.                      Affirmed.


      ¶1      SHIRLEY      S.   ABRAHAMSON,   J.       This    is    a   review     of    a

published decision of the court of appeals affirming a judgment

of the Circuit Court for Waukesha County, Patrick C. Haughney,

Judge.1




      1
       Porter v. State, 2017 WI App 65, 378 Wis. 2d 117, 902
N.W.2d 566.
                                                       No.        2016AP1599



     ¶2     The   plaintiffs-appellants-petitioners,         E.      Glenn

Porter, III, and Highland Memorial Park, Inc.,2 challenge the

constitutionality of two statutes: Wis. Stat. §§ 157.067(2)3 and

445.12(6)4 (2015-16).5    The parties refer to these two statutes

     2
       E. Glenn Porter, III, is the president and one of the
principal owners of Highland Memorial Park, a cemetery located
in New Berlin, Wisconsin. Mr. Porter and Highland Memorial Park
shall be referred to collectively as "Porter."
     3
         Wisconsin Stat. § 157.067(2) provides:

     No   cemetery   authority   may    permit   a  funeral
     establishment to be located in the cemetery.        No
     cemetery authority may have or permit an employee or
     agent of the cemetery to have any ownership, operation
     or   other    financial   interest    in   a   funeral
     establishment.   Except as provided in sub. (2m), no
     cemetery authority or employee or agent of a cemetery
     may, directly or indirectly, receive or accept any
     commission, fee, remuneration or benefit of any kind
     from a funeral establishment or from an owner,
     employee or agent of a funeral establishment.
     4
         Wisconsin Stat. § 445.12(6) provides:

     No licensed funeral director or operator of a funeral
     establishment may operate a mortuary or funeral
     establishment that is located in a cemetery or that is
     financially,   through   an  ownership    or    operation
     interest or otherwise, connected with a cemetery. No
     licensed funeral director or his or her employee may,
     directly   or   indirectly,  receive   or    accept   any
     commission, fee, remuneration or benefit of any kind
     from any cemetery, mausoleum or crematory or from any
     owner, employee or agent thereof in connection with
     the sale or transfer of any cemetery lot, outer burial
     container, burial privilege or cremation, nor act,
     directly or indirectly, as a broker or jobber of any
     cemetery property or interest therein.
     5
       All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.


                                  2
                                                                           No.     2016AP1599



as the "anti-combination laws."                    Generally, these laws prohibit

the joint ownership or operation of a cemetery and a funeral

home.       Porter argues that the anti-combination laws violate his

rights to equal protection and substantive due process under the

Wisconsin and United States constitutions.6

       ¶3         In    the   circuit    court,     the   State    moved     for    summary

judgment.              It argued that rational basis scrutiny applied to

Porter's claims because he had not alleged the creation of a

suspect class or the violation of a fundamental right.                                   See

Aicher ex rel. LaBarge v. Wis. Patients Comp. Fund, 2000 WI 98,

¶56, 237 Wis. 2d 99, 613 N.W.2d 849.                      The State asserted that

the anti-combination laws survived rational basis review because

they       were    rationally      related     to    three      legitimate       government

interests: (1) preserving competition in the death care services

industry; (2) protecting consumers from higher prices and poor

services;          and    (3)    reducing     the    potential      for     abuses      from

commingling of cemetery and funeral revenues.

       ¶4         The    circuit    court    granted      the     State's    motion      for
summary judgment.               It concluded that the anti-combination laws

are    constitutional           because     they    are   rationally       related     to   a

number of legitimate government interests, namely "preserving

competition, avoiding commingling of funds, preserving consumer

choices,      avoiding          higher   prices,     fostering      personal       service,

[and] avoiding undue pressure on consumers . . . ."                          The circuit


       6
           U.S. Const. amend. XIV, § 1; Wis. Const. art. I, § 1.


                                              3
                                                                           No.     2016AP1599



court explained that it was "satisfied . . . that if there are

arguments         over   whether    some    of    this     works   or    some      of   that

doesn't work, it stands as proof then that there is a basis for

the law . . . ."

       ¶5        Porter appealed.         The parties disagreed on the proper

scope of rational basis review and whether the anti-combination

laws have a rational basis.

       ¶6        The court of appeals held that regardless of the scope

of   rational       basis    review    employed,       the   anti-combination            laws

were       not     unconstitutional        on     either     equal      protection        or

substantive due process grounds.7                 The court of appeals explained

that the anti-combination laws were rationally related to the

legitimate         government      interests      of     protecting      consumers       and

limiting the possibility for abuse of trusting requirements.

       ¶7        Applying the standard set forth in Mayo v. Wisconsin

Injured Patients & Families Compensation Fund, 2018 WI 78, ___

Wis. 2d ___,         ___     N.W.2d ___,         we    conclude      that        the    anti-

combination statutes do not violate the equal protection or due
process          clauses     of     the     Wisconsin        and        United         States

constitutions.             The    anti-combination        statutes      are      rationally

related to the legitimate government interests of protecting the

welfare      of    particularly      vulnerable        consumers     and      limiting    or

minimizing the manipulation of funds required to be held in

trust by funeral directors and cemetery operators.

       7
       Porter v. State, 2017 WI App 65, ¶2, 378 Wis. 2d 117, 902
N.W.2d 566.


                                             4
                                                                            No.     2016AP1599



       ¶8     Accordingly, we affirm the decision of the court of

appeals.

                                              I

       ¶9     E.   Glenn    Porter      is    the        president    and     one    of    the

principal owners of Highland Memorial Park, a cemetery located

in   New     Berlin,     Wisconsin.       Porter         would   like   to        expand   his

business      by   operating       a   funeral      establishment       in    conjunction

with   his     existing     cemetery      operations.              However,       the   anti-

combination laws prevent him from doing so.

       ¶10    As   a     result,       Porter      filed     the     instant        lawsuit,

asserting          the      anti-combination                laws        are         facially

unconstitutional on both equal protection and substantive due

process grounds.

       ¶11    In support of his equal protection challenge, Porter

alleged that the anti-combination laws create anticompetitive,

irrational,        and    arbitrary       distinctions           between      classes       of

Wisconsin       citizens      in       that       only     cemetery     operators          are

prohibited from operating or obtaining ownership interests in
funeral       establishments,          and        only     funeral      directors          are

prohibited from obtaining ownership interests in cemeteries.

       ¶12    In support of his substantive due process challenge,

Porter alleged that the anti-combination laws arbitrarily and

irrationally prevent cemetery operators from owning an interest

in a funeral establishment and owners and operators of funeral

establishments from having an ownership interest in a cemetery.

       ¶13    As relief, Porter sought (1) a declaratory judgment
that the anti-combination laws violate the equal protection and
                                              5
                                                                 No.     2016AP1599



due   process   clauses    of    the       Wisconsin     and    United      States

constitutions; (2) an order permanently enjoining the State from

enforcing the anti-combination laws; and (3) reasonable costs

and attorney fees.

      ¶14   The State moved for summary judgment.               It argued that

rational    basis   scrutiny    applied     to   both    of    Porter's     claims

because he had not alleged the creation of a suspect class or

the violation of a fundamental right.             The State asserted that

the   anti-combination    laws    were      rationally    related      to    three

legitimate government interests: (1) preserving competition in

the death care services industry; (2) protecting consumers from

higher prices and poor service; and (3) reducing the potential

for abuses from commingling of cemetery and funeral revenues.8

      ¶15   Porter argued that even if he has not definitively

established that the anti-combination laws are unconstitutional,

he has raised a genuine issue of material fact with regard to




      8
       On appeal, the State asserts that the anti-combination
laws are rationally related to two legitimate government
interests: (1) protecting consumers from increased prices; and
(2) limiting or minimizing the manipulation of funds required to
be held in trust by funeral directors and cemetery operators.

     As we explain below, we agree with the State that the anti-
combination laws are rationally related to the two legitimate
government interests articulated by the State on appeal.

     Accordingly, we do not address whether the anti-combination
laws are rationally related to any other legitimate government
interests.    A.O. Smith Corp. v. Allstate Ins. Cos., 222
Wis. 2d 475, 491, 588 N.W.2d 285 (Ct. App. 1998).


                                       6
                                                                     No.       2016AP1599



whether the anti-combination laws actually advance the State's

asserted interests.

       ¶16   In support of its motion, the State submitted a report

authored by economics professor Jeffrey Sundberg, who rendered

an opinion to a reasonable degree of professional certainty that

the anti-combination laws serve the State's claimed interests.

       ¶17   Sundberg      opined      that      the     anti-combination           laws

"protect     the    interest     of    consumers"       by   "encourag[ing],          or

prevent[ing]       the    discouragement        of,    competition."           Sundberg

explained that combination firms, if permitted, would "have an

opportunity to significantly reduce the amount of competition

they face" through a process called "foreclosure."                    According to

Sundberg:

       [A] cemetery with a financial interest in a funeral
       home could easily create an advantage by charging a
       normal or perhaps lower price for burials from its
       partner home, and a higher price for burials from
       other funeral homes. This would allow the combination
       to achieve a higher market share and create a
       disadvantage for rival firms, as long as the number of
       cemeteries was limited. This at least appears to be a
       consumer-friendly result, as long as it lasts.
       However, as the combination captures more market
       share, the amount of competition will decline and the
       firm can then charge full prices that include the
       artificially higher cost of the burial plot previously
       charged to other firms.     Prices faced by consumers
       will rise.
       ¶18   Although Sundberg conceded that foreclosure is "not a

common result," he asserted that it is "most likely to work in a

case   where   one       part   of    the   integrated       firm   is     a    special

resource,    one    that    cannot     easily     be    replicated       by    others."
Sundberg explained that "[t]his is likely to be the case with

                                            7
                                                                  No.   2016AP1599



cemeteries" because there are far fewer cemeteries in the United

States than funeral homes.           Sundberg continued:

       Given the land, capital, and regulatory requirements,
       it is reasonable to believe that entering the cemetery
       industry is much more difficult than starting a new
       funeral home.

       As a result, a funeral home that is owned by, or owns,
       a cemetery has access to a scarce resource, one that
       gives it an advantage over other funeral homes.     As
       other firms exit the market it becomes advantageous
       for the combination to use its market power to extract
       more money from consumers, perhaps by charging higher
       prices or perhaps by simply encouraging distraught
       consumers with few alternatives to add more features
       to their loved one's service.

       The small number of cemeteries and the barriers to
       creating new ones, especially in urban areas, give a
       special advantage to well-capitalized large firms that
       can afford to purchase multiple funeral homes.    With
       enough funeral homes, it may be profitable for a
       cemetery to completely exclude burials from funeral
       homes owned by others.
       ¶19   As    to   whether     the   anti-combination      laws    limit    or

minimize the manipulation of funds required to be held in trust

by   funeral      directors   and   cemetery    operators,      Sundberg   opined

that   the     anti-combination       laws    "reduce[]   the    potential      for

abuses from commingling of cemetery and funeral revenues."                      He

explained:

       [T]here is some potential for abuse when combinations
       exist.   The amount of money set aside is supposed to
       be 15% of the value of [a cemetery] plot.           By
       providing funeral services as well as cemetery plots,
       a firm could potentially exploit [the trusting
       requirement for cemetery plots] by increasing the
       price of something like burial vaults and reducing the
       price of the plot itself, collecting the same amount
       of revenue while being required to set aside less


                                          8
                                                                          No.    2016AP1599


       money for perpetual care, without actually reducing
       the actual expenses of perpetual care.
Sundberg      opined    that     having       a     single       firm     selling      more

categories     of   merchandise       "makes       the     commingling         potentially

easier to disguise, if a firm were interested in doing so."                              At

a minimum, Sundberg asserted, "detecting such activity would be

more   difficult"      without    the    anti-combination             laws.       Sundberg

also    explained,        without     contradiction,             that     having        more

categories of merchandise makes the commingling of funds with

different      trusting    requirements           easier    to    disguise       and   more

difficult to detect.

       ¶20    In response, Porter submitted a report and affidavit

authored by economics professor David Harrington, who opined to

a reasonable degree of professional certainty that the anti-

combination laws do not actually advance the State's claimed

interests.

       ¶21    Harrington     opined      that       the     anti-combination            laws

actually increase the cost of death care services to Wisconsin

consumers.       Harrington      explained         that    it    is     less    costly    to
produce      funeral   services     at    combination           firms    because       those

firms are able to benefit from economies of scale and scope.

Harrington also disputed Sundberg's assertion that permitting

combination firms would lead to foreclosure:

       Perhaps the best evidence for this point is [the] fact
       that combination firms already exist and do business
       in almost all of the states.      Although I have not
       deliberately investigated the possibility, I can say
       that over the many years I have studied the industry I
       have not seen any evidence that combination firms
       actually engage in the kind of exclusionary behavior

                                          9
                                                       No.   2016AP1599


     that [Sundberg] says that he fears.    If they did so,
     their conduct would likely have been the subject of a
     challenge under the antitrust laws.     I am not aware
     that any such case has ever been brought in the states
     where combination firms are permitted to do business.
     ¶22   Harrington further opined:

     Wisconsin has a state statute (Wis. Stat. § 157.11[9])
     designed to ensure that cemeteries are cared for in
     9
       Presumably,  Harrington   is   referring   to     Wis.   Stat.
§ 157.11(9g), which reads as follows:

     (9g) Care fund for cemetery lots.

     (a)

     1. Except as provided in ss. 66.0603(1m)(c) and
     157.19(5)(b), funds that are received by a cemetery
     authority for the care of a cemetery lot shall be
     invested in one or more of the following manners:

     a. Deposited and invested as provided in s. 157.19.

     c. If not invested as provided in subd. 1.a.,
     otherwise deposited by the cemetery authority in an
     investment approved by the cemetery board if the care
     funds are segregated and invested separately from all
     other moneys held by the cemetery authority.

     2. The manner in which the care funds are invested may
     not permit the cemetery authority to withdraw the care
     fund's principal amount.       The income from the
     investment of a care fund for the care of cemetery
     lots may be used only to maintain the cemetery lots
     and grounds, except that if the amount of income
     exceeds the amount necessary to maintain the cemetery
     lots or grounds properly, the excess amount may be
     used to maintain any other portion of the cemetery,
     including mausoleums.

     (b) Anyone having in custody or control any cemetery
     care trust fund received other than by testament
     shall, upon demand, deliver it to the cemetery
     authority   to  be  handled  as  provided   in  this
     subsection.

                                                         (continued)
                                10
                                                                      No.    2016AP1599


    perpetuity.     This statute applies to cemeteries
    operated by combination firms to the same extent that
    it applies to any cemetery. Abuse or misuse of funds
    is no more or less likely simply because a cemetery
    firms [sic] operates a funeral establishment.       By
    defendant's logic, a cemetery should be precluded from
    operating a flower shop because of the possibility
    that funds could be comingled [sic].     Wisconsin law
    does not prohibit cemeteries from engaging in the
    flower   business    or   from   selling    any  other
    complementary goods other than funeral services.
    ¶23     The    circuit    court      granted      the   State's        motion    for

summary judgment.       It concluded that the anti-combination laws

are constitutional because they are rationally related to the

legitimate    government      interests         of    "preserving      competition,

avoiding    commingling      of    funds,       preserving    consumer        choices,

avoiding     higher   prices,          fostering      personal    service,          [and]

avoiding undue pressure on consumers."                 The court explained that

it was "satisfied . . . that if there are arguments over whether

some of this works or some of that doesn't work, it stands as

proof then that there is a basis for the law . . . ."                                 The

circuit    court   concluded      that    it    did   not   "need     to    go    beyond

summary    judgment     and       to     have    a    trial      on   the        matter,




    (c) Except as provided in sub. (11), any cemetery
    authority that sells a cemetery lot on or after
    November 1, 1991, shall deposit 15 percent of each
    payment of principal into a care fund under par. (a)
    within 30 business days after the last day of the
    month in which the payment is received, except as
    provided in sub. (7)(d) and s. 157.115(2)(f). The
    total amount deposited must equal 15 percent of the
    total amount of all payments of principal that have
    been received, but not less than $25.


                                          11
                                                                     No.     2016AP1599



because . . . there's enough information before the court that

the court finds the law is constitutional."

     ¶24    Porter appealed.         He argued that the anti-combination

laws must be examined under the "rational basis with teeth"

standard that this court applied in Ferdon ex rel. Petrucelli v.

Wisconsin     Patients       Compensation      Fund,        2005    WI      125,    284

Wis. 2d 573,      701     N.W.2d 440.        Under     this       standard,    Porter

argued,    the    State    must   demonstrate       that    the    anti-combination

laws bear a "real and substantial connection" to a legitimate

government purpose.

     ¶25    The    court     of   appeals    held    that     regardless      of    the

standard of review employed (i.e., traditional rational basis or

"rational basis with teeth"), the anti-combination laws were not

unconstitutional on either equal protection or substantive due

process grounds.          The court of appeals explained that the anti-

combination      laws     were    rationally    related       to    the    legitimate

government interests of protecting consumers and limiting the

possibility for abuse of trusting requirements.
     ¶26    The    court    of    appeals    also    held    that    a     remand   for

further proceedings would be inappropriate.                    It explained that

although evidence, including expert opinions, had been presented

in the instant case, "the court must determine the relative

merit of that evidence during a constitutional challenge."10

                                        II


     10
          Porter, 378 Wis. 2d 117, ¶48.


                                        12
                                                                             No.     2016AP1599



       ¶27     We begin by setting forth the general standards of

review        and     principles            of     law      applicable       to      Porter's

constitutional challenges.

       ¶28     Porter         raises             facial        challenges           to         the

constitutionality          of     the       anti-combination         laws.         "A     facial

constitutional challenge to a statute is an uphill endeavor."

State    v.    Dennis      H.,    2002       WI    104,    ¶5,    255    Wis. 2d 359,          647

N.W.2d 851.         To succeed, Porter must demonstrate that the anti-

combination laws cannot be constitutionally enforced under any

set of circumstances; that is, "a facial challenge is '[a] claim

that a statute . . . always operates unconstitutionally[.]'"

Voters with Facts v. City of Eau Claire, 2018 WI 63, ¶60, ___

Wis. 2d ___, ___ N.W.2d ___ (quoting Olson v. Town of Cottage

Grove, 2008 WI 51, ¶44 n.9, 309 Wis. 2d 365, 749 N.W.2d 211).

The constitutionality of a statute presents a question of law

that we review independently.                     Aicher, 237 Wis. 2d 99, ¶18.

       ¶29     In    assessing        Porter's         constitutional      challenges,          we

presume the anti-combination laws are constitutional.                                    Aicher,
237 Wis. 2d 99, ¶18; Riccitelli v. Broekhuizen, 227 Wis. 2d 100,

119,     595      N.W.2d 392          (1999).           "The     court     indulges        every

presumption to sustain the law if at all possible, and if any

doubt     exists      about      a     statute's          constitutionality,         we     must

resolve that doubt in favor of constitutionality."                               Aicher, 237

Wis. 2d 99,         ¶18;   State       ex    rel.       Hammermill       Paper     Co.    v.    La

Plante,      58     Wis. 2d 32,        46-47,       205    N.W.2d    784    (1973).         This

strong       presumption         of    statutory          constitutionality          "is       the
product of our recognition that the judiciary is not positioned
                                                  13
                                                               No.     2016AP1599



to make the economic, social, and political decisions that fall

within    the    province    of   the       legislature."          Aicher,    237

Wis. 2d 99,     ¶20;   State ex rel. Carnation Milk Prods. Co. v.

Emery, 178 Wis. 147, 160, 189 N.W. 564 (1922).

                                    III

    ¶30    We now turn to the merits of Porter's constitutional

challenges.      We first establish the scope of rational basis

review   applicable     to   Porter's       claims.   We    then    apply    that

standard to the anti-combination laws.

                                        A

    ¶31    Porter challenges the constitutionality of Wis. Stat

§§ 157.067(2) and 445.12(6).       Generally speaking, these statutes

prohibit the joint ownership or operation of a cemetery and a

funeral home.

    ¶32    The parties dispute how rational basis scrutiny is to

be applied under the specific circumstances of the instant case.

    ¶33    Porter argues that the anti-combination laws must be

examined under the "rational basis with teeth" standard that
this court applied in Ferdon ex rel. Petrucelli v. Wisconsin

Patients Compensation Fund, 2005 WI 125, 284 Wis. 2d 573, 701

N.W.2d 440.     Porter argues that under this standard, the State

must demonstrate that the anti-combination laws bear a "real and

substantial connection" to a legitimate government purpose.                  The

State argues that Porter's constitutional challenges should be

analyzed under the traditional rational basis test, but that the

anti-combination laws pass constitutional muster under either
traditional rational basis or "rational basis with teeth."
                                    14
                                                      No.   2016AP1599



     ¶34    On the same day that we heard arguments in the instant

case, we heard arguments in Mayo v. Wisconsin Injured Patients &

Families Compensation Fund, 2018 WI 78, ___ Wis. 2d ___, ___

N.W.2d ___.11     Noting that "[t]he analysis under both the due

process and equal protection clauses is largely the same[,]"12

the Mayo court disposed of an equal protection and due process

challenge    to    Wis.   Stat.   § 893.55   under   the    following

articulation of the rational basis standard:

     A classification created by legislative enactment will
     survive rational basis scrutiny upon meeting five
     criteria:

            (1) All classification[s] must be based upon
            substantial distinctions which make one class
            really different from another.

            (2) The classification adopted must be germane
            to the purpose of the law.

            (3) The classification must not be based upon
            existing circumstances only. [It must not be so
            constituted as to preclude addition to the
            numbers included within a class.]

            (4) To whatever class a law may apply, it must
            apply equally to each member thereof.

            (5) That the characteristics of each class
            should be so far different from those of other
            classes as to reasonably suggest at least the

     11
       We scheduled the release of the instant opinion to be
contemporaneous with the release of our opinion in Mayo v.
Wisconsin Injured Patients & Families Compensation Fund, 2018 WI
78, ___ Wis. 2d ___, ___ N.W.2d ___.      We apply Mayo in the
instant case.
     12
       Mayo, ___ Wis. 2d ___, ¶39 (quoting State v. Quintana,
2008 WI 33, ¶78, 308 Wis. 2d 615, 748 N.W.2d 447).


                                  15
                                                                            No.     2016AP1599


             propriety, having regard to the public good, of
             substantially different legislation.
Mayo, ___ Wis. 2d ___, ¶42; see also Aicher, 237 Wis. 2d 99,

¶58.

       ¶35   This     five-step      analysis       is    the   proper       standard      to

apply in the instant case to Porter's constitutional claims.

See Mayo, ___ Wis. 2d ___, ¶¶39, 42.

                                             B

       ¶36   Applying the five-step analysis relied upon in Mayo,

we conclude that the anti-combination laws do not violate equal

protection or substantive due process.

       ¶37   First,        we     determine       whether       the     classifications

created      by     the     anti-combination         statutes         are     based       upon

"substantial        distinctions"      which       makes    the   classes         different

from one another.           This step is satisfied.

       ¶38   Cemetery operators and funeral establishment directors

both serve a particularly vulnerable class of consumers: those

who have suffered the loss of a loved one.                            Moreover, certain

goods and services in the death care industry are subject to
statutory trusting requirements so that persons can pay for them

"pre-need" with assurance that the necessary funds will exist

when the need arises.               See, e.g., Wis. Stat. §§ 157.11(9g)(c)

(requiring        sellers    of    cemetery       plots    to   entrust       15%    of    the

principal         paid       to      cover        perpetual       care            expenses);

445.125(1)(a)1. (requiring sellers of caskets to hold in trust

100%   of    funds        paid    before   death     until      the     "death       of   the
potential decedent").             Thus, the classifications created by the


                                             16
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anti-combination laws are based upon "substantial distinctions"

that make the classes different from one another.

       ¶39   Second,     we     determine      whether    the    classifications

adopted are germane to the purpose of the laws.                      This step is

satisfied.

       ¶40   The State argues that the anti-combination laws are

rationally related to two legitimate government interests: (1)

protecting consumers from increased prices; and (2) limiting or

minimizing the manipulation             of funds required to be held in

trust by funeral directors and cemetery operators.13

       ¶41   As the court of appeals correctly explained, "[b]oth

interests      conceivably      serve   to    protect    consumers     in    markets

encountered by virtually everyone, and at a time in their lives

when    they    may    be     particularly      vulnerable      to    questionable

marketing influences due to the loss of loved ones."                         Porter,

378 Wis. 2d 117, ¶34.

       ¶42   Moreover,        the   State's     expert,     Jeffrey        Sundberg,

explained at length how the anti-combination laws advanced these
legitimate government interests.              See supra ¶¶16-19.

       ¶43   As to the State's first articulated interest (i.e.,

protecting consumers), Sundberg opined that without the anti-


       13
        Because we agree with the State that the anti-combination
laws are rationally related to the two legitimate government
interests posited by the State, we do not address whether the
anti-combination laws are rationally related to any other
legitimate government interests.   A.O. Smith Corp., 222 Wis. 2d
at 491.


                                         17
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combination laws, combination firms would, in the short run,

offer     lower   prices    than     stand-alone        funeral    homes       and   limit

stand-alone       firms'    access      to   cemeteries.          This    would      drive

stand-alone       funeral       homes   from      the   market     at     which      point

combination firms would increase their prices.

     ¶44     As to the State's second articulated interest (i.e.,

limiting or minimizing the manipulation of funds required to be

held in trust), Sundberg also opined that the potential for

abuse arises when a combination firm sells both cemetery plots

and other merchandise subject to higher trusting requirements

because such a firm could charge more for merchandise that is

subject to a lower trusting requirement and lower its prices for

merchandise that is subject to a higher trusting requirement.

Doing this would give the combination firm immediate access to

more funds at the risk that funds are not available when the

pre-need purchaser dies and needs the paid-for merchandise.14

     ¶45     Accordingly, the classifications created by the anti-

combination laws support the purposes of those laws.
     ¶46     Third,        we      determine        whether        the         statutory

classifications are based solely upon existing circumstances.

The anti-combination laws do nothing to "preclude addition to


     14
       We do not recite Porter's contrary evidence because doing
so would be unnecessary.        Sundberg's report provides an
independent and sufficient basis for concluding that the anti-
combination laws advance legitimate government interests, and
Harrington's report and affidavit to the contrary does not
compel a different conclusion.


                                             18
                                                                    No.     2016AP1599



the numbers included within a class" and "allow expansion of the

class[es]" to include additional members in the future.                          Aicher,

237 Wis. 2d 99, ¶69.            Therefore, the third step is satisfied.

      ¶47   Fourth, we determine whether all members of each class

are treated equally.             There is nothing in the anti-combination

laws that would treat some cemetery operators differently than

other   cemetery      operators.             See     Wis.   Stat.    § 157.067(2).

Further,    there    is    nothing    in     the   anti-combination        laws    that

would   treat      some    funeral     directors       differently     than       other

funeral directors.         See Wis. Stat. § 445.12(6).              Therefore, the

fourth step is satisfied.

      ¶48   Fifth,        and     finally,      we     determine     whether        the

characteristics of each class are so different from those of the

other class to "reasonably suggest" that the legislation is for

the public good.       This step is satisfied.

      ¶49   Both     funeral       establishment       directors     and    cemetery

operators serve a particularly vulnerable class of consumers:

those who have suffered the loss of a loved one.                     Both funeral
establishment directors and cemetery operators are subject to

trusting requirements for the products and services they sell.

The unique characteristics of funeral establishment directors

and   cemetery      operators      "reasonably       suggest"   that       the    anti-

combination laws serve the public good by protecting vulnerable

consumers and making it more difficult for funeral directors and

cemetery operators to disguise the commingling of funds with

different trusting requirements.


                                           19
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     ¶50    According, we conclude that the anti-combination laws

are constitutional.15

                                       IV

     ¶51    We conclude that summary judgment was properly granted

in favor of the State.          The anti-combination statutes do not

violate    the    equal   protection   or    due    process      clauses    of     the

Wisconsin and United States constitutions.                The anti-combination

statutes    are   rationally   related      to   the     legitimate      government

interests of protecting the welfare of particularly vulnerable

consumers and limiting or minimizing the manipulation of funds

required to be held in trust by funeral directors and cemetery

operators.

     By    the    Court.—The   decision     of     the   court    of     appeals    is

affirmed.




     15
       Because we conclude that the anti-combination laws are
constitutional as a matter of law, we need not decide whether
Porter has raised an issue warranting a trial. We do, however,
highlight a passage from the court of appeals opinion:

     We decline Porter's invitation to remand this case for
     further proceedings, as none are necessary. . . . In
     addition to being unprecedented, allowing for a fact-
     finding hearing would improperly elevate a so-called
     factual determination——presumably one made under a
     mere     preponderance-of-the-evidence    standard——as
     dispositive of the question of the anti-combination
     laws' constitutionality——which determination we know
     involves a more stringent standard that is a question
     of law.

Porter, 378 Wis. 2d 117, ¶48.


                                       20
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    ¶52       REBECCA     GRASSL       BRADLEY,          J.    and       DANIEL    KELLY,      J.,

(dissenting).            The         people         of      Wisconsin          vest      distinct

constitutional        powers         of       governance            in    each        branch    of

government, but consistent with founding principles of limited

government      and     individual            freedom,        the    people       also     impose

constraints on the exercise of those powers.                                    The Wisconsin

Constitution      begins        with      a     Declaration          of    Rights,        echoing

language      from      our     nation's             Declaration          of     Independence,

recognizing that the proper role of government——the very reason

governments are instituted——is to secure our inherent rights,

including liberty:

    All people are born equally free and independent, and
    have certain inherent rights; among these are life,
    liberty and the pursuit of happiness; to secure these
    rights, governments are instituted, deriving their
    just powers from the consent of the governed.
Wis. Const. art. I, § 1 (emphasis added).                                 "Too much dignity

cannot well be given to that declaration."                           State v. Redmon, 134

Wis. 89, 101, 114 N.W. 137 (1907).                       An inherent right to liberty

means   all    people     are    born         with    it;     the    government        does    not

bestow it upon us and it may not infringe it.                                     Our nation's

founders      dissolved       "all    Allegiance          to    the      British      Crown"    in

order to restore liberty to the people.1                              "Give me liberty or

give me death," Patrick Henry's impassioned plea during those

revolutionary        times,     embodies         the      fundamental          importance       of




    1
        The Declaration of Independence para. 32 (U.S. 1776).


                                                1
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liberty, our "[f]reedom from arbitrary, despotic, or autocratic

control."2

      ¶53     While the people empower the legislature to enact laws

and   make    policy,   the   constitution       compels   the    judiciary    to

protect the liberty of the individual from intrusion by the

majority.      "[C]ourts of justice are to be considered as bulwarks

of        a     limited       Constitution            against       legislative

encroachments . . . ."        The Federalist No. 78, at 469 (Alexander

Hamilton) (Clinton Rossiter ed., 1961).                 Consistent with that

duty, courts must earnestly scrutinize laws that are challenged

for infringing constitutional rights.

      ¶54     Because   government   exists      to   protect    and   safeguard

liberty, the legislature may restrict it only for a legitimate

government purpose.        Applying even the most deferential review

of the laws challenged in this case, we discern no legitimate

government     interest   underlying       the   anti-combination      statutes.

We would reverse the court of appeals and declare the anti-

combination laws unconstitutional.           We respectfully dissent.
                                       I

      ¶55     Mr. Porter argues that Wis. Stat. §§ 157.067(2)3 and

445.12(6),4 commonly referred to as the anti-combination laws,

      2
          Liberty, Oxford English Dictionary (3d ed. 2010).
      3
          Wisconsin Stat. § 157.067(2) provides:

      No   cemetery   authority    may   permit  a   funeral
      establishment to be located in the cemetery.        No
      cemetery authority may have or permit an employee or
      agent of the cemetery to have any ownership, operation
      or   other    financial   interest    in   a   funeral
      establishment.   Except as provided in sub. (2m), no
                                                      (continued)
                                 2
                                                                 No.   2016AP1599.rgb&dk


are unconstitutional under Article I, Section 1 of the Wisconsin

Constitution because those laws deny him his fundamental right

to economic liberty——here, the right to earn a living in the

lawful occupation of his choice.                 The challenged laws prohibit

contemporaneous ownership or operation of both a funeral home

and a cemetery.         Mr. Porter owns and operates Highland Memorial

Park       Cemetery   and   would    like   to    operate    a     funeral    home   in

addition, but the anti-combination statutes prohibit him from

doing so.       He asserts that these laws were passed at the behest

of   the     funeral    directors     seeking      to   limit      competition     from

cemetery owners.        Indeed, funeral directors drafted the original

statutory       language    and     submitted     it    to   the       legislature   on

Wisconsin        Funeral      Directors          and    Embalmers          Association



       cemetery authority or employee or agent of a cemetery
       may, directly or indirectly, receive or accept any
       commission, fee, remuneration or benefit of any kind
       from a funeral establishment or from an owner,
       employee or agent of a funeral establishment.
       4
           Wisconsin Stat. § 445.12(6) provides:

       No licensed funeral director or operator of a funeral
       establishment may operate a mortuary or funeral
       establishment that is located in a cemetery or that is
       financially,   through   an  ownership    or    operation
       interest or otherwise, connected with a cemetery.      No
       licensed funeral director or his or her employee may,
       directly   or   indirectly,  receive   or    accept   any
       commission, fee, remuneration or benefit of any kind
       from any cemetery, mausoleum or crematory or from any
       owner, employee or agent thereof in connection with
       the sale or transfer of any cemetery lot, outer burial
       container, burial privilege or cremation, nor act,
       directly or indirectly, as a broker or jobber of any
       cemetery property or interest therein.


                                            3
                                                                     No.   2016AP1599.rgb&dk


letterhead.         The law went into effect in 1939, and was amended

in 1943, as a "measure requested and sponsored by the Wisconsin

Funeral     Directors       and     Embalmers         Association."         See     Drafting

File,      1939    WI     Act    240,     p.2,       Legislative     Reference      Bureau,

Madison,     Wis.5         Mr.    Porter    believes       there     is    no     legitimate

governmental interest supporting the anti-combination laws, and

he submitted evidence demonstrating that the 39 states without

these laws experience no monopolistic or price-fixing behavior

in the industry.           Mr. Porter contends favoritism toward funeral

directors      at    the     expense       of    cemetery       owners     motivated     the

legislature to enact these protectionist laws.

      ¶56     The State argues the statutes protect against funeral

industry     monopolies,          which    would       stifle    competition,       violate

anti-trust        laws,    and    ultimately          result    in   higher     prices   for

grieving customers.              The State points to eight other states that

enacted prophylactic statutes discouraging or forbidding joint

operation of funeral homes and cemeteries as evidence of the

need for Wisconsin's anti-combination statutes.                             It notes the
heavy consumer protection regulations in the death industry due

to   the    vulnerability         of    individuals       who     must     make   important

financial decisions within hours of the loss of a loved one.

The State's position is that these laws are rationally related

to   the      following          legitimate          government      interests:          (1)

protecting consumers from higher prices and (2) reducing the

      5
       Wisconsin's anti-combination laws have been revised and
rewritten over the years and now appear in Wis. Stat.
§§ 157.067(2) and 445.12(6).


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potential    for       evasion        of     Wisconsin's           death     care    trusting

requirements.

     ¶57    Mr. Porter's constitutional challenge is a facial one;

he   asserts       the            statute     is         unconstitutional           in       every

circumstance.          See State v. Smith, 2010 WI 16, ¶10 n.9, 323

Wis. 2d 377, 780 N.W.2d 90 (discussing difference between facial

and as-applied constitutional challenges).                          The burden to prove

a statute unconstitutional rests with the party challenging it.

This court describes that burden as a "heavy" one because the

court   presumes       the        legislation       is    constitutional,         engages       in

every   attempt        to    uphold     the     statute,       and       requires        a   party

challenging a law to prove it "is unconstitutional beyond a

reasonable doubt."            Id., ¶8; see also, Borgnis v. Falk Co., 147

Wis. 327,       348,        133     N.W. 209        (1911)     ("In        approaching         the

consideration of the present law, we must bear in mind the well-

established principle that it must be sustained, unless it be

clear   beyond         reasonable           question        that     it      violates         some

constitutional limitation or prohibition.").                               This is the law
and we are bound to apply it.                       But see Mayo v. Wis. Injured

Patients    &     Families          Comp.      Fund,       2018     WI      78,   ¶___,        ___

Wis. 2d ___, ___ N.W.2d ____ (R. Grassl Bradley, J., concurring)

(questioning whether beyond a reasonable doubt is an appropriate

burden to impose on a person challenging the constitutionality

of a statute).

                                               II

     ¶58    Before assessing whether the anti-combination statutes
violate the Wisconsin Constitution, it is necessary to decide

                                               5
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what level of judicial review applies:                 (1) rational basis; (2)

rational basis "with teeth"; or (3) strict scrutiny.                      The State

advocates for the basic rational basis test while Mr. Porter

requests rational basis "with teeth" review, couching it as the

"real and substantial" standard historically applied to strike

down    protectionist       laws     in   Wisconsin        lacking    a   real     and

substantial link to some legitimate governmental purpose.                         This

court, however, overruled the supreme court case that created

the rational basis with teeth standard, thereby eliminating this

level of review.           See id., ¶38 (majority opinion) (overruling

Ferdon ex rel. Petrucelli v. Wis. Patients Comp. Fund, 2005 WI

125, 284 Wis. 2d 573, 701 N.W.2d 440).                     Only two options for

judicial     review   of    challenged        legislation     remain:       (1)   the

traditional     rational     basis    test      or   (2)   the   strict     scrutiny

standard.

                                          A

       ¶59   The level of judicial scrutiny depends upon the nature

of the challenged legislation.            State v. Alger, 2015 WI 3, ¶39,
360 Wis. 2d 193, 858 N.W.2d 346.               When the statute implicates a

fundamental right or discriminates against a suspect class, this

court applies strict scrutiny and the law will be upheld "only

if narrowly tailored 'to serve a compelling state interest.'"

Id. (quoting Milwaukee Cty. v. Mary F.-R., 2013 WI 92, ¶35, 351




                                          6
                                                                      No.    2016AP1599.rgb&dk


Wis. 2d 273,         839    N.W.2d 581).6            In    all     other    challenges,      we

review    the    law       under   the     rational        basis     test   and     uphold   it

"unless     it       is    'patently       arbitrary'          and   bears     no     rational

relationship to a legitimate government interest."                             Id. (quoting

Smith, 323 Wis. 2d 377, ¶12).

    ¶60     No       one    argues       the   challenged         statutes     discriminate

against a suspect class, but Mr. Porter does assert the statute

implicates       a    fundamental         right——liberty.            Wisconsin       case    law

defines     "fundamental           rights"          as    "those      which     are     either

explicitly or implicitly based in the Constitution."                                  State v.

Martin, 191 Wis. 2d 646, 651-52, 530 N.W.2d 420 (Ct. App. 1995).

This court reaffirmed that definition in Vincent v. Voight, 2000

WI 93, ¶80, 236 Wis. 2d 588, 614 N.W.2d 388 ("Fundamental rights

are based on the Constitution either explicitly or implicitly."

(citing Martin, 191 Wis. 2d at 652)).

                                                B

    ¶61     The           Wisconsin       Constitution           explicitly         identifies

liberty as an inherent right and establishes state government
for the express purpose of securing liberty, among other rights.

The question then becomes whether economic liberty falls within

liberty's       protection.              The   Wisconsin         Constitution        does    not

define    liberty,          but    the    framers         of   our    state    constitution

    6
       Whether strict scrutiny or rational basis applies to a
statute involving a fundamental right may also depend on the
extent the law burdens the right.  See State v. Alger, 2015 WI
3, ¶39 n.16, 360 Wis. 2d 193, 858 N.W.2d 346.        A severe
restriction compels strict scrutiny review but a reasonable
restriction, which does not cause significant restriction, may
trigger rational basis review. Id.


                                                7
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expressly        incorporated     language          from       the         Declaration       of

Independence,         including   liberty         among      those        inherent    rights

governments       are    instituted     to       protect.        Therefore,          we     may

ascertain the original public meaning of liberty by considering

the   documented         perspective     of       our        nation's        founders,       in

particular        the    principal      author          of     the         Declaration       of

Independence, Thomas Jefferson.

      ¶62       Thomas   Jefferson's     understanding               of     "liberty"       was

influenced by the writings of Enlightenment thinkers and Whig

intellectuals.7          At the time of Independence, the concept of

"liberty"       was   "quite   broad,   encompassing            economic          liberty    as

well as other forms of liberty less tangible than mere freedom

from physical restraint."8            Cato's Letters, from which Jefferson

and   other        Framers     conceptualized           economic            and    political

doctrine, defined "liberty" as follows:

      [T]he Right of every Man to pursue the natural,
      reasonable, and religious Dictates of his own Mind; to
      think what he will, and act as he thinks, provided not
      to the Prejudice of another; to spend his own Money
      himself, and lay out the Produce of his Labour his own
      Way; and to labour for his own Pleasure and Profit,
      and not for others who are idle, and would live and
      riot by pillaging and oppressing him, and those that
      are like him.[9]
      7
       David N. Meyer, Liberty of Contract:                     Rediscovering a Lost
Constitutional Right 14 (2011).
      8
          Id.
      9
       Id. at 15 (quoting "Cato," An Enquiry into the Nature and
Extent of Liberty (Letter No. 62) (Jan. 20, 1721), in John
Trenchard & Thomas Gordon, 2 Cato's Letters: Or, Essays on
Liberty, Civil and Religious, and Other Important Subjects 244-
45, 248 (1733).


                                             8
                                                                          No.    2016AP1599.rgb&dk


Cato's      Letters,       a   major      influence      upon      Jefferson,          envisioned

"liberty"         to    encompass       economic        freedom       and        the    right     of

individuals to choose the means and manner of their labor, free

from restraint.

       ¶63       Jean     Jacques      Burlamaqui,       a        Swiss     jurist,          heavily

influenced         the     Framers'         language         in     the         Declaration       of

Independence.10           Burlamaqui regarded liberty as a natural right

of individuals "[to] dispos[e] of their persons and property,

after the manner they judge most convenient to their happiness."

With Jefferson grounding his philosophy in Burlamaqui and Cato's

Letters,      the concept of "liberty" that formed the basis for

Independence naturally encompasses economic freedom.11

       ¶64        James     Madison       regarded       a        government        that      would

infringe individual economic liberty as unjust:                                 "That is not a

just     government,           nor   is     property         secure       under        it,    where

arbitrary restrictions, exemptions, and monopolies deny to part

of   its     citizens      that      free   use    of    their       faculties,         and     free

choice      of    their    occupations . . . ."12                  Just     as    our    nation's
founders recognized the importance of economic freedom, over a

century ago this court adopted an expansive interpretation of


       10
            Id. at 14.
       11
       See id. at 14-17 (arguing that Jefferson, as well as most
other Framers, understood "liberty" and the "Pursuit of
Happiness" as broad concepts based on Cato's Letters and
Burlamaqui).
       12
       James Madison, Property, Nat'l Gazette, Mar. 29, 1792,
reprinted in The Founder's Constitution 598 (Philip B. Kurland &
Ralph Lerner eds., 1987).


                                               9
                                                                  No.   2016AP1599.rgb&dk


liberty.         The term "liberty" in our constitution "does not mean

merely immunity from imprisonment,"

       [but] include[s] the opportunity to do those things
       which are ordinarily done by free men, and the right
       of each individual to regulate his own affairs, so far
       as consistent with rights of others.
State ex rel. Zillmer v. Kreutzberg, 114 Wis. 530, 533-34, 90

N.W.    1098      (1902).       Early   in     Wisconsin       history,    this    court

repeatedly        and    consistently        recognized      economic     liberty——the

right       to    earn   a   living     in    any     lawful     occupation       without

unnecessary           government        interference——as           a      fundamental,

constitutional right.13

       ¶65       In   Maxwell   v.   Reed,     7    Wis. 493    (*582),     499    (*594)

(1859), this court recognized the right to earn a living as "one

of     the       great    bulwarks      of        individual     freedom"      "guarded

by . . . fundamental            law."    The       Maxwell     court    emphasized    the

need to protect and preserve the right every citizen has to

attain "the means of living."                Id. at 498 (*594).           In Taylor v.

State, 35 Wis. 298, 301 (1874), this court declared location

restriction laws imposed on businesses posing no danger to the
public to be invalid and "an unjustifiable restriction upon, and

interference with, the fundamental rights of the citizen."                             In


       13
       Economic liberty is also rooted in our nation's history.
See Patel v. Tex. Dep't of Licensing & Regulation, 469 S.W.3d
69, 93 (Tex. 2015) (Willett, J., concurring) ("The U.S. Supreme
Court has repeatedly declared that the right to pursue a lawful
calling 'free from unreasonable governmental interference' is
guaranteed under the federal Constitution, and is 'objectively,
deeply rooted in this Nation's history and tradition.'"
(footnotes omitted)).


                                             10
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State    ex    rel.      Winkler        v.    Benzenberg,        101   Wis. 172,          176,    76

N.W. 345       (1898),       this       court       noted       that       unreasonable         laws

"interfer[ing]        with        the    right      of    the    citizen      to       pursue    his

calling," which "invade the right of the citizen to pursue a

lawful      business"       cannot           be    upheld.          This     court      has     long

acknowledged that laws unreasonably interfering with "the right

of   the      citizen       to     pursue         his    calling"      run     afoul      of     the

constitution.                Id.         at        176-78       (voiding           a     law      as

unconstitutionally               discriminating           against      solo        plumbers       by

granting "special privileges" to plumbers in partnership).

      ¶66     This court's protection of economic liberty continued

into the 20th century, when the court held that "[t]he general

right of every person to pursue any calling, and to do so in his

own way, provided that he does not encroach upon the rights of

others, cannot be taken away from him by legislative enactment."

Kreutzberg,        114    Wis. at        534       (emphasis      added)      (quoted         source

omitted).             The        court        later       identified          an       employer's

constitutional right to employ whom he will, see, e.g., A.J.
Monday Co. v. Auto., Aircraft & Vehicle Workers of America,

Local No. 25, 171 Wis. 532, 539-541, 177 N.W. 867 (1920) ("The

right of an employer to exercise his constitutional privilege as

to   whom     he   will     employ       has       been     fully    established         in     this

state."     (citing       Kreutzberg,             114   Wis. at      534));    and       upheld    a

citizen's constitutional right to carry on a lawful business,

see, e.g., McGraw-Edison Co. v. Sewerage Comm'n of Milwaukee, 11

Wis. 2d 46, 53, 104 N.W.2d 161 (1960) ("Prohibition of the use



                                                   11
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of a suitable and legitimate product certainly interferes with

plaintiffs' right to carry on a lawful business.").

      ¶67   In several cases, this court specifically recognized

the limits on legislative power to confer economic prerogatives

on certain groups to the exclusion of others.            For example, the

court   declared    unconstitutional    a   law   banning      the    sale    of

oleomargarine, which was passed to protect the dairy industry

from competition posed by makers of butter substitutes.                John F.

Jelke Co. v. Emery, 193 Wis. 311, 321-22, 214 N.W. 369 (1927).

Criticizing   the   legislature   for   violating    its      constitutional

duty to protect personal liberty, the John F. Jelke court noted:

"The constitution is the mandate of a sovereign people to its

servants and representatives, and no one of them has a right to

ignore or disregard its plain commands."          Id. at 321.         The John

F. Jelke court also emphasized limits on legislative power when

its   exercise   touches   constitutional    rights,     as    well    as    the

judicial duty to employ a more exacting scrutiny of legislation

that oppresses the people:

      [F]rom the standpoint of constitutional right the
      Legislature has no more power to prohibit the
      manufacture and sale of oleomargarine in aid of the
      dairy industry than it would have to prohibit the
      raising of sheep in aid of the beef cattle industry,
      or to prohibit the manufacture and sale of cement for
      the benefit of the lumber industry.   In some cases a
      proper exercise of the police power results in
      advantage to a particular class of citizens and to the
      disadvantage of others.    When that is the principal
      purpose of the measure, courts will look behind even
      the declared intent of Legislatures, and relieve
      citizens against oppressive acts, where the primary
      purpose is not to the protection of the public health,
      safety, or morals.

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Id. at 323 (emphasis added).

      ¶68   In    Dairy     Queen       of     Wis.,           Inc.   v.    McDowell,      260

Wis. 471, 478c, 51 N.W.2d 34 (1952), reh'g denied, 260 Wis. 471,

52 N.W.2d 791, Dairy Queen challenged a ban on its lower fat

ice-cream-like product in Wisconsin.                           Organizations associated

with the dairy industry filed amicus briefs, which the court

construed    as     "promot[ing]          a        restricted         market"      for   that

industry.    Id.    The Dairy Queen court rejected the notion "that

the legislature or the court should be party to an act which

appears to have no purpose except to protect the interests of

the . . . manufacturers             of        ice          cream . . . against             the

competition of Dairy Queen."                   Id. at 478b-78c.              Instead, the

court applied John F. Jelke in holding the statute invalid.

      ¶69   In State ex rel. Grand Bazaar Liquors, Inc. v. City of

Milwaukee, 105 Wis. 2d 203, 313 N.W.2d 805 (1982), this court

declared    unconstitutional        a     Milwaukee             ordinance    that    granted

liquor   licenses    only    if     the       licensee's          business      received    at

least 50 percent of its income from the sale of intoxicants.
Id. at 204-06.       The ordinance had an anti-competitive purpose

"to keep large retail stores out of the retail liquor business."

Id. at 209-10.        The court, applying the rational basis test,

cautioned that "we should not blindly rubber stamp legislation

enacted under the guise of the city's police power when careful

review has revealed no logical link between the legislation and

the   objective     it    was     enacted           to     effect."          Id.    at   218.

Accordingly, the court determined that the ordinance did "not
accomplish   the    articulated          goals"          and    was   "an   arbitrary      and

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irrational exercise of the city's police power and a denial of

equal protection."       Id. at 212.

       ¶70   Permeating these decisions is the notion of individual

freedom, which may not be subjugated by majoritarian impulses or

the    success   of    certain   interest    groups   in   prevailing    upon

legislators for special privileges at the expense of individual

rights:      "Free will in making private contracts, and even in

greater degree in refusing to make them, is one of the most

important and sacred of the individual rights intended to be

protected."      Kreutzberg, 114 Wis. at 540.

       ¶71   Courts and legal commentators increasingly recognize

the importance of an engaged judiciary in protecting economic

liberty, and modern courts are abandoning the reflexive rubber-

stamping of legislative acts that infringe it.             See, e.g., Patel

v. Tex. Dep't of Licensing & Regulation, 469 S.W.3d 69 (Tex.

2015) (Willett, J. concurring) (discussing economic liberty as

fundamental right under state constitution); Randy E. Barnett,

Does the Constitution Protect Economic Liberty?, 35 Harv. J.L. &
Pub.    Pol'y    5    (2012)   (concluding   the   Constitution     protects

economic liberty as a fundamental right that may be reasonably

regulated but not infringed); see also Saint Joseph Abbey v.

Castille, 712 F.3d 215, 226-27 (5th Cir. 2013) (striking down

anticompetitive law restricting the sale of funeral merchandise

to state-licensed funeral directors in challenge by Benedictine

monks wanting to sell handcrafted pine coffins); Merrifield v.

Lockyer, 547 F.3d 978, 991-92 n.15 (9th Cir. 2008); Craigmiles
v. Giles, 312 F.3d 220, 222, 224 (6th Cir. 2002) (invalidating

                                       14
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state law banning sale of caskets by anyone other than funeral

directors     as    infringement       of   economic          liberty    and    concluding

that     "protecting        a    discrete        interest      group     from       economic

competition is not a legitimate governmental purpose"); Casket

Royale, Inc. v. Mississippi, 124 F. Supp. 2d 434, 436-37 (S.D.

Miss. 2000); Santos v. City of Houston, 852 F. Supp. 601, 607-08

(S.D. Tex. 1994) ("[A] statute based on pure favoritism which

creates       a         closed      class        will         likely      be        declared

unconstitutional."); Shoul v. Commonwealth, 173 A.3d 669, 677

(Pa. 2017) (quoting Gambone v. Commonwealth, 101 A.2d 634, 636-

37     (Pa.   1954)       for    the   proposition,           "Under     the    guise       of

protecting        the     public    interests,          the    legislature          may    not

arbitrarily interfere with private business or impose unusual or

unnecessary restrictions upon lawful occupations."); David E.

Bernstein, The Due Process Right To Pursue a Lawful Occupation:

A Brighter Future Ahead?, 126 Yale L.J.F. 287 (Dec. 5, 2016).

Regardless of the standard of review employed, the court in this

case     overlooked        an      opportunity       to       thoroughly        scrutinize
legislation that advances the economic interests of one group

over the liberty interests of another at the level of inquiry it

deserves.

                                            III

                                             A

       ¶72    Economic       liberty——the         right       to   pursue       a     lawful

occupation or business endeavor——predates the establishment of

Wisconsin statehood, as well as our nation's founding.                                    "[A]t
the Common Law no man might be forbidden to work in any lawful

                                            15
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Trade . . . ."         The Case of the Tailors of Habits &c. of Ipswich

(1614) 12 James I (KB), reprinted in 1 The Selected Writings of

Sir Edward Coke 392 (Steve Sheppard ed., 2003).                              As Blackstone

noted,    "[a]t       common     law   every       man   might      use     what      trade    he

pleased."14

     ¶73    Historically, Wisconsin courts rejected laws grounded

solely in economic protectionism.                        In doing so, as Wisconsin

case law illustrates, this court demonstrated its longstanding

commitment       to    protecting      the     people's       constitutional           liberty

interest, enshrined in Article I, Section 1, of the Wisconsin

Constitution as an inherent and fundamental right.

     ¶74    Because        Article       I,     Section        1    of      the       Wisconsin

Constitution          includes       economic       liberty        within       its    general

guarantee of liberty as an inherent and fundamental right, we

question     whether      rational       basis        review       is     the     appropriate

standard    to    apply    in     assessing        the    constitutionality             of    the

anti-combination         statutes       in     this      case.          When      fundamental

constitutional rights are implicated, we generally apply strict
scrutiny     review.           The     anti-combination            statutes        completely

prohibit funeral homes and cemeteries from combining operations,

thereby flatly forbidding Mr. Porter to "do those things which

are ordinarily done by free men" and infringing "the right of

each individual to regulate his own affairs."                              See Kreutzberg,

114 Wis. at 534.          Specifically, the statutes deny Mr. Porter his

inherent right to earn a living in the lawful occupation of his


     14
          2 William Blackstone, Commentaries *427.


                                              16
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choice by precluding him from providing funeral home services

solely because he already operates a cemetery.                           Because the

statutes infringe a fundamental right and the burden imposed

upon the right is a severe restriction, strict scrutiny review

would seem to be appropriate.               See Alger, 360 Wis. 2d 193, ¶39

n.16.

      ¶75   The    parties      here,     however,    did   not    brief    or   argue

application of strict scrutiny to the asserted infringement of

economic liberty under the declaration of inherent rights in

Article I, Section 1; therefore, we leave that analysis for

another case.       Instead, we address the issues presented by the

parties:    whether       the    anti-combination       statutes      violate      the

constitutional      guarantee        of   equal    protection,     and     under   the

rational basis test, do the anti-combination statutes bear a

relationship with any legitimate government interest?

                                           B

      ¶76   As applicable to Mr. Porter, the effect of the anti-

combination laws is to create a class of people who may not have
a   financial     interest      in   funeral      establishments.        That    class

consists    exclusively         of   cemetery     associations'     employees      and

agents.     Wis. Stat. § 157.067(2).              As for Highland Memorial, the

laws create a class of organizations that may not host funeral

establishments       on    their        property.        That      class    consists




                                           17
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exclusively of cemetery associations.15                   Mr. Porter and Highland

Memorial        say       these     classifications,        and         the     attendant

differential treatment, violate their equal protection rights.

We agree.

       ¶77     The United States Constitution promises Mr. Porter and

Highland Memorial the equal protection of the laws.                              See U.S.

Const. amend. XIV, § 1 ("No state shall . . . deprive any person

of life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal protection

of the laws.").                So does Wisconsin's Constitution.                 See Wis.

Const.       art.    1,   § 1     ("All    people   are   born    equally       free    and

independent, and have certain inherent rights; among these are

life, liberty and the pursuit of happiness; to secure these

rights, governments are instituted, deriving their just powers

from the consent of the governed.").                   When a law divides people

into        classes,      it     creates    the     potential      for     differential

treatment under the law.                  That is why, when we encounter such

classes,       our     first     question    is   whether   the     law       treats   them
differently.           Aicher ex rel. LaBarge v. Wis.                   Patients Comp.

Fund, 2000 WI 98, ¶56, 237 Wis. 2d 99, 613 N.W.2d 849 ("Parties


       15
       Because the anti-combination laws are interlocking as
between cemetery associations and funeral establishments, the
law also creates a class of people who may not have a financial
interest in cemetery associations, or locate their businesses on
cemetery grounds.    That class comprises funeral directors and
operators. Wis. Stat. § 445.12(6). We could conduct the equal
protection analysis from the perspective of either (a) funeral
directors and operators, or (b) cemetery association employees
and agents.     Because the petitioners fall into the latter
category, we will address their perspective.


                                             18
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seeking to challenge the constitutional[ity] of a statute on

equal   protection    grounds          must    demonstrate       that     the    statute

treats members of a similarly situated class differently.").                            If

so, we then evaluate the legitimacy of the law's purpose, and

whether there is an acceptable fit between the purpose and the

means by which the law attempts to achieve it.                       See, e.g., State

v. West, 2011 WI 83, ¶90, 336 Wis. 2d 578, 800 N.W.2d 929 ("The

right to equal protection does not require that such similarly

situated    classes   be       treated   identically,          but     rather   requires

that the distinction made in treatment have some relevance to

the purpose for which classification of the classes is made.").

When the classification does not affect a fundamental right, we

review the "fitness" aspect under the rational basis standard of

scrutiny.      Castellani        v.    Bailey,       218   Wis. 2d 245,         264,   578

N.W.2d 166 (1998) ("Where . . . a suspect classification is not

alleged, and fundamental constitutional rights are not at stake,

the statute must be sustained unless it is patently arbitrary

and bears no rational relationship to a legitimate government
interest."    (internal        quotations      and    citation       omitted)).        For

purposes of this section of our opinion, we assume the anti-

combination    laws       do     not     touch       on    a   fundamental        right.

Therefore,    we   will    conclude       the     "legislative          classification

satisfies the rational basis test if it meets five criteria":

    (1)   All   classification[s] must  be   based  upon
    substantial distinctions which make one class really
    different from another.

    (2) The classification adopted must be germane to the
    purpose of the law.


                                          19
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      (3) The classification must not be based upon existing
      circumstances only. [It must not be so constituted as
      to preclude addition to the numbers included within a
      class].

      (4) To whatever class a law may apply, it must apply
      equally to each member thereof.

      (5) That the characteristics of each class should be
      so far different from those of other classes as to
      reasonably suggest at least the propriety, having
      regard to the public good, of substantially different
      legislation.
Aicher, 237 Wis. 2d 99, ¶58 (brackets in original).

      ¶78    The second and fifth elements of this test, which lie
at   the    heart    of   this   contest,         are    best   evaluated           together.

Combined,     they    instruct        us    to     consider        whether      the    law's

classification       is    germane         to     its    purpose,        and    reasonably

suggests     the    propriety    of    imposing         on   the    different         classes

substantially       different     rights         or     disabilities.           The     State

proffers two explanations in satisfaction of these requirements.

First, it says, the anti-combination laws "reasonably restrict

anti-competitive          commercial            activity     through           prophylactic

antitrust-like       rules    forbidding          the    formation       of    potentially

monopolistic firms."           And second, it says "the anti-combination

laws are also rationally related to the State's interest in

limiting     the    manipulation       of       funds    required        to    be    held   in

trust."

                             1. Anti-Competitiveness

      ¶79    The     State's     first           justification       for        the     anti-

combination laws rests on what might be the firmest possible

grounds.     Protecting consumers from monopolistic practices is an



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exercise of the state's police powers.16           And when the State

exercises its police powers, it is operating in an arena where

it has maximum flexibility to craft and implement its policies.17

But the arena, like all arenas, has boundaries.                 It is our

responsibility to point them out and adjudge whether the State's

chosen policy has fallen out of bounds.            And even though we

presume the policies fall on the lee side of the line, our

rational basis scrutiny is neither feckless nor lackadaisical.

We   insist   that   there   really    be   a   rational,     non-fanciful

connection between the law's purpose and the means by which the

law pursues that purpose.     The guiding principle of this type of

scrutiny is bound up in its name——"rational basis."               Something

is rational only if there are reasons that support it.              Reasons

     16
       See, e.g., Carlson & Erickson Builders, Inc. v. Lampert
Yards, Inc., 190 Wis. 2d 650, 662, 529 N.W.2d 905 (1995)
("Antitrust laws are intended to prevent restraints on free
competition, restraints which can harm purchasers, consumers of
goods and the public. The importance of the antitrust laws in
preventing   monopolies   and   encouraging  competition,   'the
fundamental economic policy of this state,' is directly
reflected in the statement of legislative intent in sec. 133.01,
Stats. 1991–92, and in the case law.").
     17
       See   Kahn  v.   McCormack,   99 Wis. 2d 382,   384,  299
N.W.2d 279 (Ct. App. 1980) ("The state's police power has been
defined as 'the inherent power of government to promote the
general welfare.'   This power is broad, and includes the right
to regulate the use of property and the conduct of business."
(quoted source and internal citation omitted)); see also
Bisenius v. Karns, 42 Wis. 2d 42, 54, 165 N.W.2d 377 (1969)
("[O]nce within the area of proper exercise of police power, it
is for the legislature to determine what regulations, restraints
or prohibitions are reasonably required to protect the public
safety and only the abrogation of a basic and substantial
individual liberty would justify judicial intervention to set
aside the legislative enactments.").


                                  21
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require logic, and logic is communicable from one person to

another.      So the anti-combination laws survive rational basis

scrutiny      only    if    the    State      can      provide       to        us     a   logical

explanation for how they accomplish their legitimate purpose.

      ¶80     The    State's      argument       requires       us        to        unpack      some

economic     theory    before      we   can      determine       whether            there    is   a

logical     connection      between     the      anti-combination              laws       and    the

monopoly-averting objective they are to achieve.                                    The State's

concern lies with what it believes might occur if cemeteries and

funeral establishments were allowed to combine into one company.

It fears that such an integrated company would consolidate so

much market share that the resulting control of the field would

allow it to charge higher prices for its goods and services than

would be possible absent the integration.                        The general concept

is sound, and courts have regularly affirmed that legislatures

may   adopt    laws    protecting       against        that    danger.               See,    e.g.,

Carlson & Erickson Builders, Inc. v. Lampert Yards, Inc., 190

Wis. 2d 650, 662, 529 N.W.2d 905 (1995) .                         And the State need
not   wait     until       the    injury     comes      to     pass        before         acting;

legislatures properly deploy anti-combination laws prospectively

to prevent the monopolistic seeds from taking root.                                  See, e.g.,

Paramount Pictures, Inc. v. Langer, 23 F. Supp. 890, 900 (D.

N.D. 1938) (per curiam) (acknowledging that a state legislature,

in exercising its police power, may enact laws "'to prevent a

practice      conceived      to    be      promotive      of     monopoly             with      its

attendant     evils'"      and    stating     the      court's    opinion             "that     the
existence      of      unusual       power        to     deal        with            competitors

                                            22
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unfairly . . . is probably a sufficient basis for legislative

action to prevent the possibility of its exercise." (citation

omitted)); see also May's Drug Stores v. State Tax Comm'n, 45

N.W.2d 245, 247 (Iowa 1950) (stating that in considering the

validity of various legislation addressing fair trade, unfair

discrimination,       and       unfair     competition,         "the     courts       always

recognized that the promotion of free competition was a proper

legislative endeavor under the police power.").

    ¶81     Because       all      of     that    spadework       has     already      been

accomplished, we can narrow our work to a fine point.                             We need

only explore whether there is something about cemeteries and

funeral establishments that gives rise to a monopolistic dynamic

if they are allowed to integrate.                     If there is, then we must

conclude    there    is     a    rational     basis       for   the    anti-combination

laws.   If there is not, then we will have to move on to the

State's second justification for these laws.

    ¶82     Anti-competitive behavior can present in any number of

different forms.          The one immediately of concern here is the
"foreclosure"       effect        that     can      follow      from     the    "vertical

integration" of two or more companies.                       Although the jargon is

technical,    what    it        describes    is     not    especially      complicated.

"Vertical    integration,"          the     State    explained,         "occurs   when     a

company merges with another company that provides a necessary

input in the product supply chain."                    It says higher prices may

result from such a combination, "specifically when a company

combines with a firm that provides a scarce resource and when
other   would-be      sellers       of     that     scarce      resource       face    high

                                            23
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barriers to entry."                 The foreclosure effect occurs when the

integrated firm uses its control of the scarce resource to give

itself a price advantage in the marketplace that it can pass

along to its customers.                   It accomplishes this by making the

scarce resource more expensive to its competitors, either by

controlling       so   much    of     the   market      that    competition         for   the

remaining resources causes a supply-demand upward spiral, or by

selling the scarce resource to competitors at an inflated price,

or by denying its competitors access to the resource altogether.

As the State explained, "a combined firm——one with access to the

resource     through    ownership——can              charge   its    consumers       a    lower

price for the resource and charge rival firms a higher price,

thus gaining market share."

       ¶83   There is nothing inherently wrong, of course, with one

company obtaining more market share than its competitors.                                 The

problem,     if    there      is     to   be    a    problem,      comes        later.     An

integrated firm with control of a scarce resource can use that

control to underwrite lower prices for its own customers while
inflating the cost of its competitors' products.                                 Eventually,

with that price advantage, the integrated firm could not only

obtain greater market share, but also drive its competitors from

the market.        Finding itself alone, or virtually alone, in its

product category, the State says, the integrated firm will do an

about-face and "charge all consumers higher prices."                             There is a

real    danger     that       the     remaining       player       on     the    field    can

thereafter maintain its dominant (or even exclusive) position
because its control of the scarce resource makes it either too

                                               24
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expensive for potential competitors to re-enter the field, or

entirely impossible.             The validity of this theoretical construct

is accepted        broadly enough that it has generated no dispute

between the parties here.

      ¶84    As     we    now     consider          how     this    theory      applies     to

cemeteries and funeral establishments, remember that vertical

integration is about obtaining a company that has a resource

necessary     to    production          of    the     integrated       firm's       goods    or

services; the key to understanding the theory (and the analysis

below) is keeping a watchful eye on where that resource appears

in the supply chain.              If the scarce resource is to empower the

company to produce a maleficent effect, its place in the supply

chain must precede the ultimate product.                       The importance of that

resource's place in the supply chain is the power it gives the

company to make its final product more competitive through the

foreclosure effect.             But if the ultimate product is itself the

scarce resource, then vertical integration has added nothing to

the   company's          power     to        exert       economic     pressure       on     its
competitors.

      ¶85    The State says the scarce resource in this calculation

is burial plots:          "[C]emeteries provide a relatively scarce good

(burial     plots),      and     it     is    difficult       for     would-be       cemetery

operators to break into this market."                         Its expert also agreed

that the burial plots are the scarce resource, particularly when

compared     to     funeral       homes:             "As     economist       Dr.    Sundberg

explained,         '[g]iven       the         land,        capital,     and        regulatory
requirements,       it    is     reasonable         to    believe     that    entering      the

                                               25
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cemetery industry is much more difficult than starting a new

funeral home.'"          (Alteration in original.)       Therefore, the State

says, integrated cemetery/funeral homes are problematic because,

"having access to the scarce resource of burial plots, [the

integrated firm] would be well positioned to use its market

share to set inflated burial-plot prices for consumers coming

through competitors' standalone funeral homes while charging its

own consumers reduced prices."                (Alteration in original.)        The

State goes on to say that "[t]he small number of cemeteries and

the barriers to creating new ones, especially in urban areas,

give a special advantage to well-capitalized large firms that

can afford to purchase multiple funeral homes.                      With enough

funeral homes, it may be profitable for a cemetery to completely

exclude burials from funeral homes owned by others."

      ¶86    Notice the direction of economic movement through the

supply chain.       The customer goes through the funeral home to the

cemetery.        The scarce resource (the burial plot) already belongs

to   the    cemetery      before   it   vertically    integrates.        Vertical
integration theory, however, teaches us to look for the scarce

resource in the part of the supply chain the cemetery does not

already own.       So when the State looks in the proper spot, all it

sees is funeral homes, which it admits (as does its expert) is

not the scarce resource.           Therefore, vertically integrating with

a funeral home will not empower the cemetery to foreclose its

competitors, or make itself into a price-gouging monopoly.                     The

thing      the   State     fears   cannot     be   accomplished     through    the
mechanism of vertical integration.              Here's why.

                                         26
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      ¶87    Imagine     that        Highland       Memorial       and      Mr.     Porter

vertically-integrated with a funeral home; if this gives it the

power to turn itself into a monopoly, we should be able to watch

it happen in our mind's eye as the theory described by the State

comes to life and governs Highland Memorial's economic progress

in   the    market.      But    as    we     will   see,    if    Highland        Memorial

attempted     the     foreclosure       gambit,      it    would        undoubtedly     be

disappointed by the results.               Lowering the cost of burial plots

for those who use its funeral home services and raising it for

others is not likely to bring it additional market share.                             This

price reduction must be accounted for somewhere.                              There are

three possibilities:           (1) Highland Memorial absorbs the loss as

a short-term hit in an attempt to gain market share, after which

it raises prices back to an economically-viable level (or higher

if   it    captures    enough       market    share);      (2)    Highland        Memorial

raises the cost of its funeral home services to make up the

difference; or (3) the profits from its funeral home operations

subsidize     its     cemetery       operations      to    such     an     extent     that
Highland Memorial can operate profitably even with the reduced

rates on burial plots.              If the first option describes Highland

Memorial's operations, it will be able to put economic pressure

on competing cemeteries——but its ability to do so has nothing to

do with the funeral home; it could have done the same thing

without integrating.            If    the second option is the operative

scenario, then Highland Memorial can put no economic pressure on

competing     cemeteries       at    all     because      the    combined      cost    for
cemetery     plots    and   funeral        home     services      does     not    change.

                                             27
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Option three presents the most likely scenario in which Highland

Memorial may make a sustainable bid for market share because the

combined operations allow it to offer a cumulative price to its

customers that stand-alone cemeteries and funeral homes cannot

match.

       ¶88     But not even option three gives Highland Memorial the

power    to    foreclose      its    competitors.         The   key,       as   mentioned

above, is the position of the scarce resource in the supply

chain.       A cemetery competing with Highland Memorial has no need

to acquire such a resource to remain competitive.                               It is the

scarce resource.         The only thing it needs to remain on par with

Highland Memorial is the addition of funeral home services.                            And

as the State and its expert admitted, those are not scarce.

Once the competing cemetery obtains its own funeral home, it's

back    to    parity    with    Highland       Memorial,     and     neither     has   any

inborn advantage as they compete for market share.

       ¶89     But let's assume Highland Memorial is a very well-

capitalized       cemetery          (a   scenario      the      State        posits     as
particularly dangerous), and it uses its reserves to snap up one

funeral home after another until it believes it can direct all

funeral traffic to itself.               Here, the State's concession that

funeral       homes    are    not    scarce     is   especially          important,    and

explains why Highland Memorial can gain no advantage.                            Highland

Memorial could burn through the most generous stack of cash and

never acquire a controlling interest in the funeral home market.

That supply is theoretically unlimited, and if Highland Memorial
made    an    attempt    to    corner    the    market,    it   would       find   itself

                                           28
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paying parlors full of funeral directors with not enough work to

keep them busy.            Meanwhile, the competing cemetery would simply

send an employee through the funeral-director licensing process,

after which its overhead would be substantially lower than the

funeral-director           heavy    Highland          Memorial.         The        free    market's

creative destruction would have its way with Highland Memorial,

after which the competitor, not Highland Memorial, would be left

standing.

       ¶90    The     only    way    vertical          integration          could     create      the

type of danger the State fears is an exact reversal of the

State's       well-capitalized              cemetery           scenario.                  In     this

hypothetical, the cemeteries and funeral homes switch places,

and   it     is   the    well-capitalized             funeral        home     that    goes      on   a

spending spree.            Here, the funeral home would use its resources

to    acquire     a     large      number    of       cemeteries,           such     that      anyone

wishing to be buried must use its services.                            That would at least

position the scarce resource (the burial plots) in the supply

chain where it could give the well-capitalized funeral home the
power to foreclose its competitors.                           The State likely did not

advance this alternative scenario because there is nothing for

the     anti-combination           laws     to        do     under     such        circumstances.

Vertical      integration          cannot        create       a      funeral-home          monopoly

without preliminarily creating another monopoly——a monopoly in

cemeteries.           So     the    aspiring          proprietor        of     a     funeral-home

monopoly will find himself stymied by the statutes that have as

their      purpose      the       prevention          of     that     harmful        preliminary
monopoly.         See      Wis.    Stat.    ch.        133    (Trusts        and     Monopolies).

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Without      the    ability    to    form       the    cemetery   monopoly,      vertical

integration will do nothing to advance his plans for a funeral

home   monopoly.        Consequently,            the    anti-combination      laws     have

nothing to do with the prevention of anti-competitive behavior

under these circumstances.

       ¶91    It is not a trifling thing when our laws prevent some

of Wisconsin's citizens, but not others, from engaging in lawful

economic activity.           There must be an acceptable reason for doing

so, and it must be expressible in logical terms.                          The court, in

deciding     there    is     such    a    reason,      provided   no     analysis.      It

instead chose to simply paraphrase the State's expert:

            As to the State's first articulated interest
       (i.e., protecting consumers), [the State's expert]
       opined   that   without  the   anti-combination   laws,
       combination firms would, in the short run, offer lower
       prices than stand-alone funeral homes and limit stand-
       alone firms' access to cemeteries.    This would drive
       stand-alone funeral homes from the market at which
       point combination firms would increase their prices.
Majority      op.,    ¶43.      As       we     demonstrated,     supra,    the    expert

provided no logical connection between the anti-combination laws

and the asserted interest in protecting against anti-competitive

behavior.      Because the court provided no independent analysis,

we have no way of knowing what it believes the connection to be.

The bench and bar would benefit from the court's own analysis

rather than a paraphrase of the State's argument.

       ¶92    Our    conclusion          with    respect    to    this    part    of   the

State's argument should not be understood as                            questioning the

legislature's wisdom in enacting the anti-combination laws.                             We
question only whether they have any rational relationship to

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preventing anti-competitive behavior.                      Because they do not, we

must    consider      the     second        asserted      justification               for     their

existence.

                              2.     Trust Requirements

       ¶93    Wisconsin's      statutes        protect         consumers         who    purchase

death-care         products    and      services,         in      part,          by    requiring

purveyors to hold a certain amount of sale proceeds in trust.

For example, a pre-death purchase of a casket requires a funeral

home to hold 100 percent of the proceeds in trust until the

person is deceased.            Wis. Stat. § 445.125(1)(a)1.                           Cemeteries

are required to hold 15 percent of the proceeds from the sale of

burial plots in trust for perpetual care purposes.                                    Wis. Stat.

§ 157.11(9g)(c).           Cemetery pre-need sellers licensed under Wis.

Stat. § 440.92 must hold in trust 40 percent of the proceeds of

cemetery merchandise (such as monuments, markers, nameplates,

vases, and urns).          Wis. Stat. §§ 440.92(3)(a), 157.061(3).

       ¶94    The    State    says     it    can    justify       the    anti-combination

laws    as     a     means     of      preventing         cemeteries             and        funeral
establishments from circumventing these trust requirements.                                     Its

cursory      argument      notes    that     if    a    cemetery        and      funeral       home

combine, it might charge artificially higher prices for burial

plots and artificially lower prices for caskets.                                      This would

allow the combination firm to keep a smaller amount of funds in

trust even as the company's revenue remains the same.                                  The anti-

combination         laws     prevent        companies          with     dissimilar            trust

requirements        from    combining,       the       State    says,       as    a    safeguard
against such accounting abuses.                    Therefore, it concludes, there

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is   a    rational         connection         between      the    anti-combination             laws'

purpose and the means by which the laws accomplish that purpose.

         ¶95    We allow a certain amount of creative license when the

State performs its post hoc rationalizations, but we need not

entertain sophistry.                Not a word of the anti-combination laws

suggests, even obliquely, any connection at all to the trust

requirements          of     cemeteries         and        funeral      homes.          And        the

legislature has affirmatively demonstrated it does not share the

State's         concern         regarding            the      differential             in      trust

requirements.           Cemetery associations may obtain a license under

Wis. Stat. § 440.92 to serve as cemetery pre-need sellers.                                         Upon

acquiring such a license, the cemetery must not only comply with

the 15 percent trust requirement related to burial plots, it

must also satisfy the 40 percent trust requirement related to

cemetery merchandise.               The statutory text and framework indicate

that      any    effect       the    anti-combination                 laws     might        have    on

compliance        with       the    various           trust      requirements          would        be

accidental        and      fortuitous.          Fortuity         cannot       stand    in     for    a
rational connection between a law's purpose and means.                                      In fact,

it is fair to say that fortuity is the negation of a rational

connection, inasmuch as logic cannot explain a chance event.

Fortifying        the      trust    requirements           imposed       on    cemeteries          and

funeral         establishments           is     no     explanation            for     the      anti-

combination laws.

                                                 *

         ¶96    The     State      has    identified             no    rational        connection
between the anti-combination laws and the objectives it says

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they are meant to achieve.                But that does not mean the laws lack

any rational basis.           We should not suppose that our legislature

acts randomly, and without purpose.                    The State was unable to

make the required logical connection because it was trying to

link the anti-combination laws to a purpose they do not have.

The solution to such an analytical impasse is not to develop

increasingly         fantastic      means    of   relating    the       laws    to    the

asserted purposes.            If we want to discover the true rational

basis for the anti-combination laws, we should be looking for a

purpose that fits the laws like a jigsaw puzzle.                          Here, if we

look     for     a    fitting        purpose,     rather     than     a    convoluted

relationship, we instantly discover what these laws are about:

trade protectionism, plain and simple.                  As a functional matter,

there is a perfect fit between that purpose and the terms of the

anti-combination           laws.      They   protect    funeral     directors        from

facing the possibility that market forces might teach us that

integrated firms are more efficient than stand-alone operations.

That creates a boon to funeral directors, but a financial burden
on   consumers       who    would     otherwise    have    access   to     lower-cost

funeral arrangements.              This basis is not enough to uphold the

anti-combination laws, however, because the purpose of the law

itself    must       be    legitimate.        Trade    protectionism       is    not     a

legitimate     purpose.            See,   e.g.,   Craigmiles,     312     F.3d at      224

("Courts have repeatedly recognized that protecting a discrete

interest group from economic competition is not a legitimate

governmental         purpose.").             Therefore,     because       the        anti-
combination laws are rationally related only to an illegitimate

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purpose,   they    violate    the    petitioners'     right     to   the   equal

treatment of the laws.

                                          IV

    ¶97    Because   there     is    no    rational   basis    connecting    the

anti-combination statutes to any legitimate government interest,

we conclude the statutes are unconstitutional.                   The rational

basis test applied by the court "means property is at the mercy

of the pillagers."18         Wisconsin's "constitutional guarantee of

liberty deserves more respect——a lot more."19                  While generally

majoritarianism    rules,     it    may    not   subordinate    constitutional

rights to its preferences.            And while the judiciary rightly

defers to legislative policy choices, the judiciary should never

defer to legislative trampling of individual liberty.

    ¶98    We respectfully dissent.




    18
       See Hettinga v. United States, 677 F.3d 471, 483 (D.C.
Cir. 2012) (Brown, J., concurring).
    19
         See id.


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