Wisconsin Judge's Opinion Likely Provides Clues to Vernon Hershberger Trial Direction

Vernon HershbergerSometimes it's possible to infer important clues about a legal case from a judge's seemingly negative opinion. The articles about Wisconsin Judge Guy Reynolds rejecting a motion by farmer Vernon Hershberger to dismiss the case against him suggested Hershberger's motion was a total loss.  

"The legal arguments of an Amish dairy farmer representing himself in a  criminal case miss the mark, according to a Sauk County judge, led the Wisconsin State Journal in an article last week.  

And, indeed, the judge is disparaging of most of the arguments made by Hershberger, who is defending himself against charges by the state that he has failed to obtain a retail permit and is operating a dairy plant without a permit in making his unpasteurized milk and other foods available to food club members. Of Hershberger's legal arguments in favor of dismissing the case, Judge Reynolds states, "Most are set forth in conclusory terms and suffer from a lack of valid legal authority or undeveloped arguments, or both."    

The fact of the matter is that judges rarely accede to defendants' dismissal requests. Defendants invariably file them in hopes of being that one in one hundred, or whatever the ratio is, that hits the jackpot.  

But in his overall negative assessment of Hershberger's arguments for dismissal, the judge actually indicates that Hershberger could have an important argument on which the entire case could well ride.  

Hershberger had argued he was exempt under Wisconsin law from the state's requirement that he have a dairy plant license because his food club members are operators of the farm. To which the judge observed:  "Specifically, defendant notes that the exemption applies to a farm manufacturing or processing dairy products solely for the consumption by the owner or operator of the farm, or members of the household for non-paying guests or employees... The gist of defendant's contention here appears to be that since the defendant has entered into a number of contracts with other persons which contracts provide an 'ownership interest in farm animals and other products produced', he is exempt from prosecution. 

"The state counters that the exemption does not apply. The state points out that the exemption set forth above applies to a ''farm manufacturing or processing dairy products solely for consumption by the owner or operator of the farm ... ' and that the very contracts upon which the defendant relies provide that defendant is the only owner and operator of the farm. Further, the state argues that defendant fails to explain how paying an annual fee to the defendant under the contracts makes the other party to the contract (applicant) an 'operator'. Moreover, the state says, the defendant's own contract designates defendant as the 'farmer' and 'owner/holder' of the farm... In addition, the contracts... assign to defendant all of the direct physical duties of operating the farm. 

"In defendant's 41 page reply, he reasserts his view that he is exempt from the statutory licensing requirements because 'only co-owners, workers, and family' consume the products he produces... None of the foregoing arguments have to do with subject matter or personal jurisdiction. Both parties have a different view of the facts and what reasonable inferences may be drawn from those facts. 

"In this sense, the exemption issue may have much to do with what the state ultimately must prove beyond a reasonable doubt at trial. At the same time, defendant's arguments do not provide a valid legal basis for dismissing the complaint at this stage of the proceedings." 

In other words, the case likely hinges on how a jury interprets the membership agreement, or contract, Hershberger has with his food club's members. To the extent it makes the members "operators" of the farm, he may have a winning case, exempting him from Wisconsin regulations for commercial dairies. In a followup brief asking the judge for summary judgment, or an immediate exoneration, Hershberger indicates he plans to have at least 25 members testify that they, indeed, are operators of the farm, carrying out voluntary chores on the farm to help in essential farm operations.  

I've long felt that a key to convincing judges and juries about the legitimacy of private farm sales lies in the integrity of the contractual arrangements. They may cover leasing, or actual ownership or investment, but whatever the situation, they need to be legally sound, based on a state's requirements. This country runs on contracts, and the courts have repeatedly confirmed the sanctity of contractual arrangements.

A hearing is scheduled next Wednesday on a prosecution motion to limit what Hershberger can present as evidence on his behalf. That, together with the judge's refusal to dismiss the case, are all part of pre-trial maneuvering in advance of the actual trial, scheduled for September 25.  

A  rally on behalf of Hershberger will be held at 1:30 p.m. at the Sauk County Court House in Baraboo WI, in advance of his 2:30 court appearance.

I haven't been following this case very well, so I need to ask why Hershberger is representing himself?

David Gumpert's picture

Hershberger made a decision early on to "not play their game" by getting entangled in complex legal arguments and tactics via lawyers.  He is simply advocating his God-given right to exchange food with friends and neighbors. He's not about the elimination of regulations in the public sphere, but about the free exchange of food in the private sphere.

Sylvia Gibson's picture

"He is simply advocating his God-given right to exchange food with friends and neighbors. He's not about the elimination of regulations in the public sphere, but about the free exchange of food in the private sphere."

Why does this cause so much grief from the govt? This is definitely small potatoes in the grand scheme of things.

David Gumpert's picture

Industry worries about losing market share--small potatoes now could expand into large potatoes as people gain access to good food. And if industry worries, the government worries.

Sylvia Gibson's picture

David, you are right. Boils down to money. The 'organic' movement grew and the big industry fought it, and then took over and ruined it. It is not easy to find organic (by my definition). I fear raw dairy will go by the wayside as 'organic' and be adulterated. It would have to be adulterated as big ag couldn't produce a safe raw milk.

@ David: Thank you for the insight. I certainly agree with VH insofar as the free exchange of food in private. I'm a true advocate of small and private. Our gubment seems to have a different view of "private", though. I think, truly, there is no such thing as private anything anymore. And that's sad because in 200 years we've come full circle and are now fighting the same battles as our forefathers. What a shame that few were paying attention while the monied interests were taking control right under our noses. The Amish knew it from past experience which is why they started sort of segregating themselves from the rest of society. I applaud them for their efforts and fully support those choices, but in this instance I think VH is going to need a bit more expertise in his defense. Our society, judges included, don't really understand the finer points of simplicity. Another shame, in my opinion. If something isn't complicated it just doesn't make sense to people nowadays. I mean, I'd like to see him succeed all by himself in this battle, but I fear if he doesn't succeed he'll lose much more than just the God-given right to exchange food with other folks.

Couldn't the FTCLDF be of help to him?

I wish him all the best, whatever he decides to do.

Baily Crane's picture

Sacrifice the few for the good of the many, is that it Bill? Maybe David should block your comments because they all sound the same, are usually about you and your political views (that nobody cares about)and DO NOT add ANYTHING OF VALUE to the raw milk conversation. Didn't you brag about going to one of Vernon's hearing rallies, do you know what hypocrite means? Please Stop using this blog as a place to see your own words in print. This blog is devoted to what you clearly consider " small beans", why don't you go find a bigger garden to play in and stop wasting everyone's time. That you would minimize Vernon's plight and draw the focus to yourself is fairly egotistical.

mark mcafee's picture

This is a CA Milk Producers Council report on recent Dairy Milk Price and national Farm Bill Activities.

This is exactly why I do not like the Processors ( IDFA ) and the notion, that is up to American Farmers to produce an oversupply ( at their loss ) in order to feed the world. Another great argument for feeding your own family and community first. Local matters!!

Quote...

"The initial draft of the House Farm Bill was released this week, and like the Senate approved
Farm Bill, it includes the major provisions from the Dairy Security Act. Regular readers of this
newsletter are well aware of that package of policy reforms: a two-pronged proposal made up of a voluntary
“margin insurance” program coupled with a “Dairy Market Stabilization Program,” or DMSP, that gives the
nation’s dairy producers a tool to make quick, temporary adjustments to our national milk production in an effort
to maintain better supply/demand balance.
You’ll notice that I purposely wrote that only the “initial draft” of the bill is known at this point. There will
undoubtedly be efforts to amend the initial draft of the bill, and specific to the dairy provisions, reports indicate
that the nation’s processors, through their lobbyists at the International Dairy Foods Association (IDFA), have
been working on a specific amendment to strip the DMSP out of the bill. We’ve dedicated countless articles in
this newsletter to the DMSP and why IDFA is so adamantly opposed. Their arguments are extremely transparent
(they are scared to death of a producer sector that actually has the ability to temporarily scale back production
when needed). But it seems that there are still some of our legislators that buy into IDFA’s arguments that the
only way we can participate in the global marketplace is to have a constant surplus of milk production aimed at
keeping our prices below the rest of the world. Not only is this argument based purely on fiction, but it also
carries with it the “between-the-lines” argument that dairies somehow have a patriotic duty to sell our milk at a
loss so that our dairy product manufacturers can offer their products to the rest of the world. So while you
continue to sell your milk month-after-month for significantly less than it costs you to produce that milk, and
while you watch your neighboring dairies shut down their operations because they simply cannot afford to
sustain the massive losses any longer, maybe you can take some solace in the fact that IDFA and their processor
members taking that under-priced milk, turning it into a product and “feeding the world” – at a profit, no less."

IDFA ( processors ) sucks!!! I mean really suck!!... they the life out of those they buy from ( the dairy farmers ) and those they sell too ( the nutrition of the consumers ).

Hence the emergence of the Emerging Raw Milk, Local Consumer, connected market.

So glad to hear Vernon Hershberger has retained counsel through FTCLDF. I hope all goes well.

http://thebovine.wordpress.com/2012/08/28/farm-to-consumer-legal-defense...

rawmilkmike's picture

This case should have been dismissed not because of the club contract but because DATCP was obviously ignoring the wishes of the people they work for.