Defending Raw Milk in the Policy ArenaMarch 27, 2012
Judge Asked to Reconsider Dismissal of FDA Raw Milk LawsuitApril 4, 2012
[You can also follow the case on the family’s website, vernonhershberger.com]
Update, Fall 2014
On July 17, a Wisconsin Appellate Court upheld the conviction of Loganville dairy farmer Vernon Hershberger on a misdemeanor conviction for violating a hold order placed on food in his farm store. In May 2013, Hershberger was acquitted of three counts for licensing violations related to selling raw milk and other nutrient-dense foods to members of a private buyers club, but was convicted on the hold order for removing tape placed on refrigerators and other equipment by officials from the Wisconsin Department of Agriculture Trade and Consumer Protection (DATCP) during a June raid (see Updates, Summer and Fall 2013 below for more background on the case). Sauk County Circuit Court Judge Guy Reynolds had refused to let in testimony during Hershberger’s trial challenging the validity of the hold order and ordered parts of the holding order redacted. The jury could only consider whether Hershberger violated the hold order (i.e., removed the tape), not whether the hold order was legitimate. It made no sense that the jury could find Hershberger not guilty of licensing charges related to his distribution of raw milk and other foods to club members and then find that DATCP had jurisdiction to issue the hold order. Jury foreman Paul Freitag said, “If we could have ruled on whether that was a legitimate hold order, we probably would have found him innocent.”
In affirming the conviction, the appellate court held that the hold order was valid because it was within DATCP’s power to issue the order. Hershberger had a chance to request an administrative hearing on the order after it was placed but failed to exercise that right, and there was no fraud in issuing the order. The court ruled that Hershberger could not challenge the order indirectly (“collateral attack”) since he could have challenged it directly through an administrative hearing. The court indicated that even if the hold order was erroneous it still was not subject to attack by judicial appeal.
Elizabeth Rich, Hershberger’s attorney, commented, “The Court of Appeals decision continues a disturbing trend toward empowering administrative agencies to exercise their authority unchecked. Our courts have placed themselves in a straitjacket that prevents any meaningful review of agency actions. This is contrary to the role of the judiciary as it was conceived by the framers of our Constitution. ….This case is an example of the judicial deference to agency action that has become the norm in the state. Deference to agency action means no discussion of facts and how the law relates to the facts. The agency has no need to explain its actions and no fear that those actions will be subject to judicial scrutiny….We have gutted the checks and balances system so carefully designed by our founders.” Hershberger is appealing the ruling to the Wisconsin Supreme Court. Source: Andrew Mastrocola, “Due Process of Law Denied in Wisconsin Raw Milk Trial” (7/20/2014), FoodFreedomUSA.org.
Loganville dairy farmer Vernon Hershberger was sentenced to $1,000 in fines and $513 in court costs for his conviction on violating a hold order the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) officials had placed on food in his on-farm store during a June 2010 raid. A member of Hershberger’s buyers club wrote a check at the sentencing hearing to cover the fine (see Wise Traditions Summer 2013 issue for background). Hershberger had been acquitted on the other three charges against him which were (1) operating a farm store without a retail food establishment permit, (2) operating a dairy farm without a milk producer license, and (3) operating a dairy plant facility without a license.
Judge Guy Reynolds sentenced Hershberger on June 13 at the Sauk County courthouse; in sentencing the farmer, the judge rejected a motion filed by the Wisconsin Department of Justice (DOJ) to have Hershberger jailed for violating a January 2012 release order prohibiting him from distributing food to members of his private buyers club. Hershberger had stated to a reporter that he had never stopped supplying the buyers club members with food.
Judge Reynolds could have sentenced Hershberger to as much as a $10,000 fine and a year in jail for the hold order conviction but the acquittals on the licensing charges and letters from Hershberger’s supporters convinced the judge to issue a light sentence. What was unusual about the letters of support was that three of them were from members of the jury that convicted the farmer on the hold order violation.
The judge said it was the first time in all his years on the bench that jurors who had convicted a defendant had asked for leniency on the defendant’s sentencing. The jury could only consider whether there was a hold order and whether Hershberger violated the hold order—facts the farmer admitted to during his testimony. Judge Reynolds had made a pre-trial ruling prohibiting evidence from being introduced on the validity of the hold order, a ruling which effectively prevented the jurors from acquitting the farmer on the hold order charge.
One juror, Michelle Boltrass-Hopp, wrote in her letter to the judge, “I believe that our three not guilty verdicts support the fact that the Wisconsin Department of Agriculture, Trade and Consumer Protection should never have issued a holding order to Mr. Hershberger.” The jury foreman in the case, Paul Freitag, was quoted as saying that the jury “didn’t have the truth” and that “if we could have ruled on whether that was a legitimate hold order, we probably would have found him innocent.”
Hershberger has appealed the conviction on the hold order to the Wisconsin 4th Circuit Court of Appeals. It could be a year or more before the appellate court issues a decision.
In the greatest court victory for the raw milk movement in the United States,on May 25 a Sauk County jury acquitted dairy farmer Vernon Hershberger on three of four criminal charges for violations of the Wisconsin food and dairy code after a contentious five-day trial.
Hershberger was acquitted on charges of operating a farm store without a retail food establishment permit, operating a dairy farm without a milk producer license and operating a dairy plant facility without a license. He was convicted of violating a hold order that Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) officials had placed on food in his on-farm store during a June 2010 raid; Hershberger removed tape that had been put on store refrigerators. Hershberger leases cows to members of a private buyers club and provides raw dairy products and other nutrient-dense foods to club members at the farm store. Hershberger’s sentencing on the hold order has been scheduled for June 25.
Judge Guy Reynolds repeatedly ruled against the defense during the trial on what evidence could be introduced in the case, making the success of Hershberger’s lead attorney Glenn Reynolds that much more impressive. Judge Reynolds ruled that the words “raw milk” and “liberty” could not be mentioned during the trial. His pretrial ruling that the defense could not contest the validity of the hold order was responsible for Hershberger’s conviction on the hold order charge even though it made no sense that DATCP could even impose a hold order on food in Hershberger’s farm store given that the jury found the farmer was not subject to any state licensing requirements.
The jury’s verdict sets a precedent in distinguishing between those selling food to the public and those distributing food through a private contractual arrangement (e.g., agreement with a food buyers club). DATCP had claimed broad regulatory powers over operations like Hershberger’s, asserting that it has jurisdiction over any dairy farm producing milk where any of the milk leaves the farm premises. With its powerful dairy lobby, Wisconsin has been one of the most draconian states in limiting raw milk sales and distribution.
Glen Reynolds said, “This is as close to Prohibition as anything I have ever seen, but this time it’s milk and an Amish farmer rather than liquor and gangsters.”
The proceedings in the Hershberger case did not end with the jury verdict. On May 31 the Wisconsin Department of Justice (DOJ) filed a motion asking that Judge Reynolds revoke a January 2013 order releasing Hershberger and jail the farmer. What triggered DOJ’s motion was a Capitol Times article that posted May 29; in the story, Hershberger was quoted as saying that he continued to provide food to members of his buyers club all along. There were conditions attached to the judge’s release order that Hershberger could not sell food without a retail food establishment permit, could not manufacture dairy products without a dairy plant permit and could not sell or distribute milk without a milk producer license. Given that the conditions all related to the licensing charges the jury acquitted Hershberger of, it looked like the DOJ motion was nothing more than a vindictive move against the farmer to increase the punishment against him on the conviction for violating the holding order.
For Hershberger, attorney Glenn Reynolds indicated that the farmer would ask for a new trial on the hold order on the grounds that DATCP had no jurisdiction to issue it with the jury finding that Hershberger was not guilty on all three licensing charges.
The verdict should have an impact on increasing the freedom of people around the country to be able to obtain the foods of their choice from the source of their choice regardless of whether that source has a license from the state. It should advance the right to be left alone by the government when two parties enter into a private contract for food.
Congratulations to Vernon Hershberger for his courage in standing up to an agency trying to deny freedom of choice and to the members of his buyers club for the support they have given their farmer. Congratulations to attorneys Glenn Reynolds and Farm-to-Consumer Legal Defense Fund vice president Elizabeth Rich for their great work in representing Hershberger and to attorneys Amy Salberg and Anja Wilson for their help in the case. Congratulations to Liz Reitzig, Gayle Loiselle and the others who planned the events of Grow Your Food Freedom Week in support of Vernon Hershberger.
The criminal trial for Amish dairy farmer Vernon Hershberger of Loganville, Wisconsin has been rescheduled for May 20 at the Sauk County Courthouse in Baraboo. The trial is slated to run five days; it had been scheduled to start on January 7. A pre-trial hearing in the case has been set for May 7. The reason for the postponement was a freedom of religion claim made at a pre-trial hearing by Hershberger’s attorney, Farm-to-Consumer Legal Defense Fund (FTCLDF) Vice President Elizabeth Rich.
Hershberger has been charged with four misdemeanor counts for alleged violations of the Wisconsin food and dairy code. The charges are (1) operating a retail food establishment without a license, (2) operating a dairy farm as a milk producer without a license, (3) operating a dairy plant without a license and (4) violating a holding order issued by the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP). The holding order prohibited anyone from removing food products from refrigerators that had been taped in Hershberger’s farm store.
Hershberger’s trial was postponed during a December 21, 2012 pre-trial hearing before Sauk County Circuit Court Judge Guy Reynolds. The developments leading to the postponement are complex. Judge Reynolds ruled at the pre-trial hearing that an expert witness for the defense, Dr. Ted Beals, would not be allowed to testify at Hershberger’s trial after lawyers for the state Department of Justice argued that Beals’ testimony would not be relevant to any of the charges against Hershberger; Rich had asked that Beals be allowed to testify on the grounds that the safety of raw milk in general would be an issue at the trial. In June 2010, in conjunction with the hold order, DATCP issued a Summary Special Order prohibiting Hershberger from any further sales or distribution of raw milk and raw milk products; in the order, DATCP cites the inherent risks of consuming raw milk as one of the grounds for issuing the Summary Special Order.
When Rich brought up the Summary Special Order in support of having Dr. Beals testify, Judge Reynolds responded that Hershberger could have raised the issue by requesting an administrative hearing on the Summary Special Order back in 2010 but failed to do so. Rich countered that Hershberger’s religious beliefs forbid him from taking others to court and claimed that prohibiting Beals’ testimony because Hershberger failed to request an administrative hearing on the Summary Special Order violated the farmer’s First Amendment rights under the U.S. Constitution. She asked the judge to allow for briefs to be submitted to the court on the First Amendment freedom of religion issue. When the judge granted the request, Wisconsin Department of Justice lawyer Eric Defort told the court he would not be able to submit the brief before January 7 due to his work schedule. Judge Reynolds scheduled a hearing on the freedom of religion claim for March 18.
On November 27, a hearing was held in the Sauk County Courthouse to determine whether three reporters would be forced to testify at the upcoming criminal trials of Loganville dairy farmer vernon Hershberger. Hershberger is charged with four misdemeanor counts for alleged violations of the Wisconsin food and dairy code. Wisconsin Department of Justice (DOJ) attorneys filed a motion with Judge Guy Reynolds requesting that he order Capital Times reporter Jessica van Egeren, WISC-Tv News reporter Marc Lovicott and WMTv NBC reporter Chris Woodward to testify at Hershberger’s trial.
The three reporters covered Hershberger shortly after seals were broken that had been placed at Hershberger’s on-farm store by employees of the Department of Agriculture, Trade and Consumer Protection (DATCP) after a June 2010 raid of the farm by the department.
In ruling against the state’s motion, Judge Reynolds had held that DOJ had not shown that the information sought from the reporters was not available from another source; Wisconsin’s shield law only permits the subpoena of reporters if the information sought cannot be had from anyone else. Reynolds did say that if DOJ could not get the information elsewhere, he could reconsider his decision at the trial.
DOJ’s request for subpoenas to be issued the reporters was far from a typical use of the subpoena power to compel journalists’ testimony. Subpoenas are usually issued to reporters for more serious crimes like murder, not for misdemeanor violations. Reporters subpoenaed usually have information about a matter no one else has; in Hershberger’s case any number of people were at the farm when the reporters were and saw the same things.
The state’s actions showed how far it was willing to go to convict Hershberger and how little confidence it had that anyone else with the same information as the reporters would testify against Hershberger.
The trial of Loganville dairy farmer, Vernon Hershberger, for four alleged criminal violations of the Wisconsin food and dairy code has been postponed until January 7, 2013 at the Sauk County courthouse in Baraboo; Judge Guy Reynolds has set aside five days for the trial. The trial was originally scheduled to take place on September 25 (see Wise Traditions Spring and Summer 2012 issues for background).
Hershberger, who had been representing himself since the criminal complaint against him was filed, has retained the Farm-to-Consumer Legal Defense Fund (FTCLDF) to represent him at the trial. FTCLDF vice president and Wisconsin attorney, Elizabeth Rich, will be litigating the case for the Fund.
The latest pretrial hearing in the Hershberger case was held on July 11. During the hearing, Judge Reynolds ruled on motions filed by the Wisconsin Attorney General designed to prevent the jury from hearing information presented by the defense on the U.S. or Wisconsin constitution, Hershberger’s religious beliefs and jury nullification as well as a request to prohibit any comment on the effect a conviction would have on Hershberger. The filing of the motions was an indication of the state’s concern about the courageous farmer’s popularity in the community and throughout Wisconsin. The state attorney general’s office and the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) are determined to keep any focus off of how DATCP has made it difficult for dairy farmers to make a living and how the agency has limited consumer freedom of choice by cracking down on raw milk sales.
In a pretrial hearing on March 2 at the Sauk County District Courthouse, Judge Guy D. Reynolds entered a “not guilty” plea on behalf of Loganville dairy farmer Vernon Hershberger to four criminal misdemeanor charges for violating the state food and dairy code (see Wise Traditions Spring 2012 issue for background). Hershberger had not entered a plea on his own behalf, opting to wait until motions to dismiss the case he had filed were ruled on by the judge. The judge did not address the motions at the hearing. Judge Reynolds scheduled a trial date of September 25 for Hershberger.
At the hearing the judge refused to consider whether Hershberger had violated the terms of his bail which prohibited him from, among other things, selling food without a retail food establishment permit and from selling or distributing milk produced on his farm. Assistant Attorney General Eric Defort had sent the judge a report from the state Department of Agriculture, Trade and Consumer Protection (DATCP) noting that food was being sold at Hershberger’s farm store and also a letter asking the court to address the issue of bail at the hearing. The judge told the prosecution that he would take action only on motions that had been properly served and filed. Defort had not filed a motion asking that Hershberger be held in contempt.
Prior to the hearing, a rally was held in front of the courthouse where the Raw Milk Freedom Riders unveiled a “Declaration of Food Independence.” The document proclaims that “inherent in every individual is the God-given right to procure the food of one’s choice from consenting farmers and producers.” Hershberger was given the honor of being the first to sign the declaration (courtesy Rebekah Wilce, “Activists Rally Around Wisconsin Dairy Farmer Facing Criminal Charges”, 5 March 2012 posted at DailyKos.com).
On December 5, 2011, the state of Wisconsin filed criminal charges against Loganville dairy farmer Vernon Hershberger on four misdemeanor counts for violations of the state food and dairy code. Hershberger was charged with operating a retail food establishment without a license, operating a dairy farm as a milk producer without a license, operating a dairy plant without a license and violating a holding order issued by the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP). The holding order prohibited anyone from removing food products from refrigerators and freezers that had been taped at Hershberger’s farm store. The farmer broke the tape and sold products in the refrigerator shortly after the order was issued. The County District Attorney and the State Attorney General’s office are working together in prosecuting the case which is unusual in Wisconsin; typically, either the state or county would handle the matter on their own.
Hershberger currently is leasing his cows to the Right to Choose Healthy Food Buyers Club and provides dairy products and other foods to club members through a private contractual arrangement. The farmer’s position is that these arrangements are not under DATCP’s jurisdiction. DATCP has taken a broad interpretation of the state dairy code and views any transaction where milk and milk products leave the farm as being within its jurisdiction.
On January 11, 2012, Hershberger was arraigned at the Sauk County courthouse. After appearing before the Judge, he was booked and fingerprinted and released on $500 bond. The conditions of the bond were that Hershberger could not:
- Sell food without a retail food establishment license.
- Manufacture or process dairy products without a dairy plant license.
- Sell or distribute milk produced on his farm without a milk producer license.
- Allow anyone else to operate his farm, in violation of any of the above conditions.
- Impede, obstruct or interfere with any DATCP inspection on Hershberger’s property.
- Allow any other person to interfere with a DATCP inspection of his property.
Under duress, Hershberger signed a form agreeing to the conditions of the bond. He had immediate regrets about signing off on the bond’s conditions and in a subsequent hearing on January 27 asked Sauk County Circuit Court Judge Guy Reynolds to change those conditions stating he could not “in good conscience tell the more than 100 families who own the food and depend on it to feed their families, that they can no longer get food to feed their families. The Almighty God has spoken and I cannot do otherwise.” The Judge did not grant Hershberger’s request. The bond conditions remained the same.
On February 9 DATCP officials Jackie Owens and Paul Humphrey along with a Sauk County detective attempted to conduct an inspection of Hershberger’s farm to determine whether he was violating any of the conditions in the bond. They entered Hershberger’s farm store and, according to Owens, saw someone pay for items purchased at the store. Owens also said she saw numerous items in the store that were priced for sale. When Owens asked to complete an inspection of the premises, Hershberger denied her request stating that since he had no licenses with the state he would not allow her to continue the inspection. Owens wrote up a summary report on the attempted inspection and sent it on to the attorneys in the state Department of Justice prosecuting the Hershberger case. Assistant attorney General Eric Defort forwarded the report to Judge Reynolds and said, “In view of the apparent violation of the court’s orders, the State respectfully asks this court to address the issue of bail at the next hearing.”
The next hearing in the Hershberger case was scheduled for March 2. Canadian raw milk farmer and activist Michael Schmidt called one thousand people to be at the hearing warning that unless there was that show of support there was a good chance the battle in Wisconsin would be lost with other states to follow. DATCP is trying to establish an era of raw milk prohibition in Wisconsin where those in the state who don’t own and board their own cow will have no way to exercise their legal right to consume the product. The tremendous courage shown by Vernon Hershberger is bringing more attention nationwide to the efforts by government to criminalize food choices that the state doesn’t sanction. When neither the courts, legislatures nor the bureaucracies acknowledge freedom of food choice, growing numbers of otherwise law-abiding citizens will take part in “illegal transactions” and commit civil disobedience to obtain the foods they want.