“Heads I win, tails you lose.”

I couldn’t help but think about that kids’ expression–the kind of everything-going-your-way fantasy all kids dream about at one time or another–as I read through Wisconsin judge Patrick Fiedler’s opinion in two cases challenging the state’s ban on raw milk sales and distribution.

The judge ruled in the cases of Kay and Wayne Craig, owners of Grassway Organics Farm Store; and Mark and Petra Zinniker. (The cases had been consolidated into a single case.) They sought to distribute raw milk through farm stores to herdshare owners, and also argued that their stores didn’t require retail permits from Wisconsin’s Department of Agriculture, Trade, and Consumer Protection’s (DATCP). The judge ruled against them on all counts.

The judge’s ruling is quite convoluted, but essentially he seems to be saying that, despite the fact that DATCP had contradicted itself in both allowing and banning raw milk over the last decade, the agency really was consistent. For example, the judge notes that on May 8, 2009, DATCP “added a new interpretation of (the WI raw milk statute). DATCP stated that for an ownership interest to qualify as a ‘bona fide ownership interest in the milk producer,’ the ownership interest must have been acquired with an expectation of financial profit. ‘It does not include “cow shares,” license shares, or other devices that are merely designed to facilitate the illegal sale or distribution of raw milk…'”

The judge seems to agree that Wisconsin’s raw milk statute “is ambiguous,” particularly  “as to what constitutes an ‘incidental sale,’ which is allowed under state law. The judge explores dictionary definitions of “incidental,” and concludes they contradict each other as well.

So, he eventually concludes DATCP should be given “great weight deference”–essentially allowed to do whatever it wants–primarily because “the Agency’s construction of (the state’s raw milk statute) has remained consistent.”

As I said, heads I win, tails you lose.

He also states that any claim to consume the foods of one’s choice is “totally without merit.” Why? Because “arguments unsupported by references to legal authority will not be considered.” In other words, because no legislature or judge has declared such a right previously, he is prohibited from declaring such a right now.

Such a judicial mindset would presumably have made it impossible for judges to rule that such matters as school segregation or prohibitions on abortion were violations of fundamental rights.

The judge seems to have been influenced by an outbreak of 35 illnesses from campylobacter attributed by Wisconsin authorities to the Zinnikers in 2009. Based on that outbreak, he said, “It is clear…that there is a rational basis for the legislature’s prohibition against the sale and/or distribution of unpasteurized milk” because it “can result…in serious illness.”

Discussed as they are near the end of his ruling, the 2009 illnesses seem tangential to his main ruling–that DATCP can flip the coin any way it wants, and the farmer loses.

If the Farm-to-Consumer Legal Defense Fund, which represented the Craigs and Zinnikers, were a National Football League team, the coach’s job would be in jeopardy. There have now been major consecutive losses in New York (Meadowsweet), Missouri (Morningland Dairy), and now Wisconsin (Craig and Zinniker)–all a result of judges giving overriding weight to the regulators’ arguments, no matter how inconsistent or fear-mongering.

But FTCLDF isn’t an NFL team, it is an upstart legal crusader for a subclass that has never before had legal representation. As such, it can’t expect judges to simply stand up and salute the new guys in town.

FTCLDF is clearly going to have to pay its dues as the upstart, fighting long established and well funded state agencies. Maybe the key question it faces is this: What does it need to do to speed up the dues-paying process? Bring in some big-shot legal heavy hitters a la Alan Dershowitz or James Baker–lawyers who will turn judges’ heads? Increase the number of lawsuits by a factor of two, or five, or ten, in hopes of hitting one of the few receptive judges who must surely sit out there in a courtroom somewhere in America?

In the meantime, this is a discouraging time for advocates of food rights. There is no doubt in my mind that the regulators-can-do-no-wrong attitude by state judges is fueling the ever-more-intense attacks we’re seeing by the U.S. Food and Drug Administration on farmers and food clubs. John Sheehan and cohorts feel increasingly comfortable, and immune from oversight, in their secret-police undercover tactics to destroy private food clubs and put small farms out of business.

I’m not sure what the answer is, but clearly the FTCLDF needs to re-think its approach.  In the meantime, it has appealed the Craig and Zinniker cases.