Legal Maneuvering in Hershberger Case Is Mind Numbing, And Here’s Why It Makes Me Nervous
What to make of the latest legal twists in the Vernon Hershberger raw milk saga? I thought about trying to doctor a photo of Hershberger to put on the site so it would look like a human pretzel, because that's what he seems to have become--a legal pretzel.
Yesterday there was a hearing about whether Hershberger should have filed an administrative appeal with the WI Department of Agriculture, Trade, and Consumer Protection (DATCP) shortly after the state attempted to shut down his farm store serving a food club, in 2010, via a holding order.
The good news is that more than 100 people braved blizzard conditions to attend the hearing in the Sauk County Courthouse in Baraboo.
The bad news? Most of those attending the hearing probably couldn’t tell you what the hell the hearing was really about. The whole thing, as I understand it, is about whether Hershberger’s lawyers can call witnesses to testify about the benefits of raw milk. The state is arguing he can’t, since he didn’t exercise his right to appeal the holding order back in 2010. Hershberger says his religious beliefs prohibited him initiating a legal action against the state in the form of the appeal. But don’t hold me to what I’ve just said.
There was all kinds of maneuvering yesterday by the state prosecutors, the defense lawyers, and the judge...about Biblical statements prohibiting covering legal activities, which Hershberger gives precedence over bureaucratic rules, and which he is arguing is part of his religious freedom guaranteed by the U.S. Constitution’s First Amendment. There was arguing as well about whether Hershberger did indeed appeal a second holding order placed on his farm, and whether that showed he wasn't as wedded to his principles as he now claims.
But the real decision making is likely to come down to much the same considerations that drove WI Judge Patrick Fiedler to rule a year-and-a-half ago that, under Wisconsin law, we don’t have the right to the food of our choosing...hell, we don’t even have the right to the milk of our own cow.
The judge in the Hershberger case, Guy Reynolds, concluded yesterday’s hearing with an order to both sides--he wants the prosecution and defense to file briefs on whether the initial holding order filed by the state against Hershberger in 2010 was subject to appeal according to Wisconsin statutes. That says to me that Judge Reynolds is looking for specific provisions in Wisconsin law to hang his hat on that Hershberger should have filed an appeal...much like Judge Fiedler hung his hat on Wisconsin law to conclude that the state’s laws about dairy permits reign supreme, even overrule any fundamental right we may have to feed ourselves and our families the foods of our choosing.
I find myself thinking back to the earlier days of this case, when Hershberger sat in court at the defense table holding a Bible, saying he was defending himself and the Bible was his law. Part of his reasoning was he didn’t want to be drawn into the convoluted legal process, "not to join in their game...Once they get you in their game, they'll suck you dry.” Boy, did Hershberger understand well how thoroughly convoluted and distorted our legal system is.
I’m not saying he shouldn’t have engaged lawyers to represent him--he really had no choice if he wanted to avoid being railroaded into a guilty verdict. But he understood early on that the case was about something very straightforward: his right to sell food directly to a private group of individuals, under contract.
I guess I worry about whether that basic question will ever make it out from under from the morass of legalities now being argued about, to be judged by a jury.
Then again, there is a lot to be said for the argument that, regardless of how the case turns out, Hershberger and his lawyers are making the state sweat through what has to be a terribly uncomfortable process. The longer the case goes on, and the more people brave blizzards to be in the courtroom, the more people will be asking themselves: Now, why is the state going to such great lengths to penalize a humble dairy farmer who has never made anyone sick, and every day makes lots of people more healthy?
In the meantime, though, DATCP appears to be trying to consolidate its authority under Judge Fiedler's decision that essentially gave the agency carte blanche over dairy farms. One farmer told me recently that the agency is issuing a "Notice" to dairy farmers holding Grade A dairy licenses who are found to be selling raw milk. The "Notice" forbids any raw milk sales for three years. If the farmer is caught selling raw milk within the three years, the license is revoked, essentially putting the farmer out of business, since most Wisconsin dairy farmers who sell raw milk also have Grade A dairy licenses.
These "Notices," which are understood to have been issued to at least a couple of farmers, provide for no negotiation or appeal. And there appears to be no acknowledgment that Wisconsin law allows "incidental" sales of raw milk by holders of Grade A licenses. If the state wins its case against Hershberger, look for DATCP to consolidate its authority over dairies so it is complete. That helps explain further why the stakes are so high, and the legal path so frustratingly meandering. Every legal point is being fought tooth and nail for advantage.
(Additions have been made to this post since it was first published.)