Accusing FDA of "Quasi-Criminal Action," Amish Farmer Seeks "Public Court Forum"; Those in Favor of Raw Milk...
The Amish are reluctant participants in the legal system, no matter what the occasion. They prefer to stay very much within their own communities, and avoid conflict with the outside world.
But Dan Allgyer has put together a credible and cogent response to the U.S. Food and Drug Administration's motion for Summary Judgment in its move to implement a permanent injunction against interstate raw milk shipments from his farm.
The FDA action is designed to deprive more than 900 Maryland families of raw milk (and other foods) they obtain through the Grassfed on the Hill food club.
Indeed, Allgyer claims that the FDA action "has created a serious dilemma" by "violating (his) due process and equal protection under the law." So much so that he "is prepared to proceed with a public court forum, if necessary."
The FDA obviously wants to avoid a public confrontation with an Amish farmer, which is why it filed a written motion for summary judgement in the first place. It hoped the judge would simply sign its pre-printed Permanent Injunction, allowing the big-shot Justice Department lawyers to walk away without having to confront their prey. No, a public hearing, with a humble dairy farmer making his own defense, in front of a courtroom full of buying club supporters, is not what the FDA had in mind when it launched this case last April.
Allgyer in his response makes two primary arguments. First, he contends he is operating a "private membership association" protected under the First and Fourteenth Amendments to the U.S. Constitution that protect right of assembly and due process. He contends he did away with his Rainbow Valley Farms as a business entity and that his "Rainbow Valley,a 1st and 14th (amendment) Private Membership Association, does exist and does not deal with the public; it only deals with private members..." He cites a number of U.S. Supreme Court rulings that make the case "that private membership associations are outside your jurisdiction and authority being exempt."
In addition, he argues that the FDA's action, though classified as a civil action, is in reality "a quasi-criminal action." "It is a quasi criminal matter because of the severe sactions and consequences that could occur as a result of the FDA investigation and the inspection." As such, he said, it "requires prior notice of the offense, probable cause and official complaint, which is totally lacking in this case."
He asks for a "pre-administrative hearing...because of the loss of business and the chilling effect on Rainbow Acres Farm due to the FDA investigation and inspection." Allgyer notes that, "Quasi-criminal refers to a proceeding which, though not actually a criminal prosecution, is sufficiently similar in terms of the sanction to be imposed, e.g. civil fine, loss of business, loss of employment, loss of license, suspension..., etc....In a quasi-criminal prosecution, all of the due process rights must be made available to the Defendant except presentment of the charge to a grant jury." In other words, trying to stamp out a small enterprise should require more careful judicial consideration than just signing a pre-printed FDA order form.
Allgyer argues as well that the FDA has violated Privacy Act questions and failed to provide its investigators' oaths of office. And he questions the legality of FDA "warning letters."
He told me after filing the response that he asked for a public court hearing as a way to challenge the FDA's tactics. "The FDA's way is to scare people. What I'm saying is that I'm not scared...We have valid arguments. What we are doing is perfectly legal. What they are doing is illegal."
Progessive Dairyman reports that its reader poll on whether raw milk should be legalized was its best read article of 2011. Maybe more to the point, more than 4,000 voted in favor, with only 80 voting no. Perhaps that explains why I never see any opponents to raw milk at the food rights demonstrations I attend.
Wisconsin raw dairy farmer Vernon Hershberger has had his court hearing to answer criminal charges changed from Jan. 4 to Jan. 11, at 1 p.m. The complaint provides the charges, and the courthouse address.