Its not often that a judge steps in to protect a farmer claiming a violation of his constitutional rights from aggressive state regulators, but thats exactly what has happened in the northeast corner of Minnesota.
In a 19-page decision, state judge Michael Cuzzo issued two orders: first, he denied a Minnesota Department of Agriculture request that raw dairy farmer David Berglund and his Lake View Natural Dairy be held in contempt of court for refusing to allow the MDA to inspect his dairy last October; and second, he stayed an order from his own court that Berglund be required to allow inspection of his dairy by MDA agents. (Unfortunately, the file is too large for me to upload and link to here.)
Judge Cuzzo put off both the contempt-of-court and inspection issues pending a larger decision he plans on the constitutionality of the MDAs regulatory authority over raw milk. Burglund had refused to allow MDA inspectors on his farm because of his claim that the Minnesota constitution specifically allows farmers like him the right to “sell or peddle the products of the farm or garden occupied and cultivated by him without obtaining a license therefor.”
Judge Cuzzos ruling is yet another slap in the face of the MDA, which has, over the last five years, taken it upon itself to act as the U.S. Food and Drug Administrations lackey and rid the state of raw milk. It turned its disagreements with raw-milk farmer Michael Hartmann into a multi-year vendetta, in which it used law enforcement officers to help as it confiscated milk and pulled over his delivery truck in an early-morning raid, until finally it was ruled out of bounds on the truck inspection and then rejected on seeking punishment for the farmer for violating a probation.
The MDA was also handed a setback in the case of another farmer it pursued over raw milk, Alvin Schlangen, when in 2012 a Minneapolis jury acquitted him of criminal charges he violated various dairy and food permit laws.
The case of David Berglund offers a vivid example of how a farmers refusal to engage in what he considers to be illegal actions by regulators can open the way to judicial consideration of constitutional issues. According to a history of the case in Judge Cuzzos opinion, for about two years, beginning in early 2013, Berglund essentially ignored or refused to partake of various administrative efforts by the MDA and the Minnesota Attorney Generals office to force him to accept inspections and the inevitable orders restricting his farming that would result. His refusal included ordering MDA agents off his property on two occasions.
At one point, Berglund explained himself in a terse statement to the AGs office, according to Cuzzos opinion: On January 21, 2014, David Berglund responded to the Attorney General explaining his position in the matter. He stated that the Department had not proven he was not in compliance with the Minnesota constitution, and thus he believed he need not do anything in the matter. Mr. Berglund specifically stated: [t]herefore, because of your silence there is no dispute between MDA and I. So why would one ask for an appeal?
In his lengthy opinion, Judge Cuzzo concludes that in all the administrative maneuvering by the MDA and AG between early 2013 and 2015, Berglund didnt receive an adequate opportunity to present his constitutional arguments. Mr. Berglund has demonstrated a valid reason for his failure to comply with the Courts Administrative Inspection Order signed October 14, 2014. Judge Cuzzo then quoted from another case to conclude: Contempt is an extraordinary remedy that must be exercised with caution. This Court will not hold Mr. Berglund in contempt, an extraordinary remedy, for asserting a challenge to the constitutionality of a statute.
Judge Cuzzo suggested he is looking forward to ruling on the constitutionality of the MDAs efforts to restrict Berglund. He took note of a 2005 challenge to the MDA by dairy farmer Michael Hartmann, in which the Minnesota Supreme Court upheld the state constitutions protection of a farmers right to peddle the products of his farm, but indicated the MDA still had authority to regulate those products. According to Cuzzo, Mr. Berglund is now challenging the constitutionality of the regulations that allow the Department to inspect his farm in the first place. The Minnesota Supreme Court did not address this precise issue in Hartmann.
At long last, Minnesotas dairy farmers may receive a clear explanation of their rights under the states constitution. But it could be many months, or even years, before Judge Cuzzo issues his opinion, and very likely there will be appeals beyond whatever he says. In the meantime, David Berglund is free to continue selling his raw dairy products, and is continuing fundraising for his farm expenses; his legal defense is being provided by the Farm-to-Consumer Legal Defense Fund, which welcomes all financial support.