Chuck PhippenIt’s often said the wheels of justice turn slowly. In the case of Chuck Phippen, a New York producer of raw milk, they turn not only slowly, but in convoluted fashion as well.

I first wrote about Chuck Phippen’s strange encounters with the New York Department of Agriculture and Markets nearly four years ago, when his 60-cow Breese Hollow Dairy was shut down because listeria was detected in his dairy’s milk. He paid the $300 fine.

Phippen would be shut a half dozen more times in the next few years, until finally he decided to refuse to pay the fines, as I described in a posting in 2009.  New York Ag & Markets took him to state court in late 2009 in connection with $800 in fines from two shutdowns, in 2008 and 2009.

The Farm-to-Consumer Legal Defense Fund took Phippen’s case, and moved to have the case dismissed, based on expert testimony that the state hadn’t made an adequate case that the milk was dangerous, since the state hadn’t included either the number of units of listeria in the milk sampes, nor the subtype of listeria. Moreover, no one had ever complained that they became sick after consuming his milk.

The state provided its own expert testimony that the milk was potentially dangerous, and thus adulterated, and asked the judge to decide in its favor via summary judgment.

Finally, last month, the judge refused the state’s request, stating in his decision that “there are genuine issues of material fact that exist regarding whether Defendant’s milk was adulterated on September 15, 2008 and May 26, 2009 and therefore in violation of the law.” For those who are interested in the Constitutional aspects of this kind of case, the judge provides an interesting analysis of why he rejected the FTCLDF argument that the state push against Phippen violated the equal protection provisions of the Fourteenth Amendment. And there is an interesting discussion as well about NY Ag & Markets’ resistance to outside laboratory testing.

The whole matter should be left to a jury, the judge concluded. At a jury trial, not only could additional experts be brought in, but NY Ag & Markets laboratory officials and workers involved in the listeria findings for Phippen’s dairy could be questioned and cross examined.

Not so fast, said NY Ag & Markets. It challenged the judge’s decision, filing papers seeking clarification.
Here’s how FTCLDF attorney Gary Cox explains the situation:  “Now that the court has denied the department’s summary judgment motion, we have indicated to the department that we want to conduct depositions of their laboratory personnel to see if they did the tests correctly to see if indeed there was actually l. mono in chuck’s milk.  However, the department now thinks that the court’s ruling is confusing and needs clarification.” 

As a result, the FTCLDF has now had to draft papers to answer the NY Ag & Markets request for clarification.

As I said, the wheels of justice turn slowly. But clearly, NY Ag & Markets doesn’t want its lab people questioned via deposition or in open court about their procedures for finding and reporting on listeria in raw milk.

This situation also vividly illustrates the challenges and pitfalls of legal challenges to state and federal actions infringing on food rights. For an assortment of reasons–and there are endless lawyer jokes that testify to the concerns–legal actions in this country usually require huge amounts of time, energy, and money.

A few individuals have, in comments here, challenged the competency and commitment of the Farm-to-Consumer Legal Defense Fund, but I think it’s clear from this kind of case that the organization means business. Unfortunately, it has to play by the rules, and those rules are open to myriad interpretations and endless delays.

It’s also important for us observers that legal thinking changes over time. American courts at one time sanctioned slavery, and then racial discrimination. As the culture and mores change, so do the courts. I think that’s part of what we’ll observe with regard to raw dairy and food rights. Judges and juries need to be educated, along with the general population.

Gradually, I’m hopeful we’ll see more open discussion, of the sort food safety lawyer Bill Marler was advocating in comments following my previous post.

The good news is that an assortment of weighty issues–legal challenges to all-or-none listeria findings and setting of raw dairy standards, among them–are all coming up because of growing demand for unencumbered access to nutrient-dense food. It’s easy for me to say it’s all a matter of patience, but the more urgent question is whether the Chuck Phippens of the country can hold out as such matters are dealt with in tedious fashion. I’m certainly appreciative that farmers like him are willing to go through the process for the sake of our ongoing access to real food.


Advance note: The Estrella Family Creamery is planning a press forum and fundraising dinner Feb. 19 in Washington state. More details will be forthcoming, but in the meantime, the cheese producer is accepting donations for its effort to challenge the U.S. Food and Drug Administration’s shutdown of the business last October.