The seals that were cut from Vernon Hershberger's farm store in June 2010 (photo by Max Kane).The trial of raw milk farmer Vernon Hershberger, due to begin Jan. 7, has been delayed, likely for several months, because of the complexity of legal issues raised at today’s hearing in Baraboo, WI.

Even before today, the legal issues raised by both the prosecution (the Wisconsin Attorney General’s office on behalf of the WI Dept of Agriculture, Trade and Consumer Protection) and defense lawyers for Hershberger have been enough to spin the heads of even the most grizzled legal mavens. There were such matters as jury nullification, legal intent, attempts to block witnesses from testifying, differences in how to define “consumers,” the extent of DATCP’s authority, and any number of other issues…and this all before the trial began.

At today’s (Friday) hearing, the issue was freedom and protection of religion, as guaranteed by the U.S. Constitution’s First Amendment.

That issue came up when Judge Guy Reynolds sided with the state in agreeing, at the prosecution’s request, to block retired pathologist Ted Beals from testifying on behalf of Hershberger.  Prosecutors argued that Beals’ testimony was irrelevant, because the case was about licenses, not health and sanitation issues.  Defense lawyer Elizabeth Rich countered that the DATCP “Hold Order” implemented by DATCP in June 2010 via tags and tape affixed to Hershberger’s farm store refrigerators, included findings that the products subject to the Order were misbranded or adulterated and hazardous to health. She further argued that DATCP’s subsequent Summary Special Order backing up the Hold Order said raw milk was inherently dangerous.  

Rich argued that Hershberger had a right to challenge those findings in his criminal trial.  The judge asked the prosecutors whether Hershberger had had an opportunity to challenge the findings earlier.  A prosecutor said the Summary Special Order included a recitation of appeal rights–Hershberger could have filed an administrative appeal of the Order, but he did not.  Based on that, the judge ruled that Beals’ testimony could not come in.  

Rich said that, to the extent the judge’s ruling was based on Hershberger ‘s failure to file the administrative appeal of the orders, it violated his First Amendment rights, because he has a sincerely held religious belief that prevents him from being the aggressor in any legal proceedings.

Here is how Hershberger explained it late Friday in a note to supporters: “I have a sincerely held religious belief that I would not take anyone to court. Therefore the only options I had when the holding order was put in place was to take it to an Administrative Court or to disregard it. Being that we don’t believe in taking someone to Court our only option was to disregard the Holding Order and face the consequences.”

Hershberger’s religious beliefs stem from his upbringing in an Amish community. The Amish generally avoid taking legal action, and even in some cases from hiring lawyers to defend themselves when they are prosecuted.

Elizabeth Rich sought the judge’s permission to file a brief in regards to Hershberger’s First Amendment rights, to convince him that Beals should be allowed to testify. The State claimed it didn’t have time for something like that over the holidays and with the trial so close. The Judge said he would give Rich time to file the brief, and the prosecution time to respond, necessitating a delay in the trial. There will be a conference call Jan. 4 to schedule a new trial date.

Mind you, this legal wrangling is all about whether one defense witness should be allowed to testify, if you want an insight into how aggressively the state is fighting this case. In the meantime, today’s events are just another reason I advise people planning to fly to a trial to purchase a refundable ticket.
A Michigan farm family won a legal victory against their township, which had tried to shut the farm down over alleged zoning violations.

A county judge backed the application of Michigan’s Right to Farm Act as a defense when the family farm was sued by Forsyth Township for having approximately 150 chickens and 8 sheep on their 6.5 acres; the Buchlers sell eggs and wool produced on the farm. Because the area where they farm is not zoned for agriculture, the township sought an injunction to halt the farming activities. The judge held that the Right to Farm Act controlled over the township zoning ordinance.

The Farm-to-Consumer Legal Defense Fund, which provided backing to farm owners Randy and Libby
Buchler of Shady Grove Farm, has the complete story.