The legal confrontation initiated by New York’s Department of Agriculture and Markets against Barb and Steve Smith is turning into more of a lengthy chess match by the day.

Part of me hesitates to provide as much detail as I’ve provided—sorting through legalese is never much fun, no matter which side you’re on–yet I feel as if it’s important to vet the arguments. Especially given previous discussion here, and the desire by many individuals to see this whole matter resolved by some brave judge somewhere. And also given the fact that you won’t find the news media covering this.

Part of the reason it’s become so unwieldy is that it’s now a three-front war (the Ag and Markets hearing, the Smiths’ suit, and now the state’s contempt-of-court push). If I’m providing too much detail, causing the eyes to glaze over, let me know. Otherwise, I’ll push ahead, per the latest move…

When NY Ag and Markets sought out “insurance” in the form of a contempt-of-court complaint against Barb and Steve Smith, it may have been less than forthright in its application.

In a new move in the chess match between the Smiths/Meadowsweet Dairy LLC, and NY Ag and Markets, the Smiths’ lawyer, Gary Cox, is now seeking a stay on the “show cause” order to Barb and Steve Smith for possibly being in contempt of court over their alleged refusal to comply with an Ag & Markets search warrant in December. A stay is required, he argues, “because the Department has failed to bring to this Court’s attention two related and pending proceedings that will impact the show cause hearing set for February 28, 2008.”

One of the proceedings was the administrative hearing held Jan. 17 and 18, in which Ag & Markets sought to force the Smiths to discontinue their raw milk herd share. In his motion, Gary recaps the testimony of Will Francis, the Ag and Markets dairy director, described in my previous posting, and concludes, “Based on Mr. Francis’ testimony, it became clear that not only was the search warrant illegally obtained, but also that New York’s Agriculture and Markets Laws (A&ML) do not apply to Respondents’ conduct. A decision on that administrative hearing is expected before the end of February 2008.”

The other proceeding is the Smiths’ court suit seeking a preliminary injunction to end the alleged Ag and Markets harassment of the Smiths and their shareholders, which Gary says, “was filed by Respondents on December 13, 2007 (before the search warrant was issued).” A state court had on Jan. 22 refused to dismiss the case, and ordered it moved to a different court.

Gary concludes: “In this matter [contempt of court issue], a stay is needed to maintain the status quo until either the administrative hearing runs its course (including appeals) or the claims raised in Respondents’ complaint for declaratory judgment are ruled on. For instance, the Court in (now Albany) County may find in favor of Respondents and rule that Respondents are not regulated by the State. If that is the case then this entire contempt action will be rendered moot. Conversely, if this matter proceeds before the administrative hearing has run its course, the Hearing Officer may find that New York’s A&ML do not apply to Respondents’ conduct, at which time the Department will appeal under Article 78.

"Consequently, if this contempt hearing goes forward as scheduled it runs the risk of reaching conclusions of law and making findings that are inconsistent with the conclusions and findings issued by the Court in the declaratory judgment action or by any Court in the administrative hearing process, thereby rendering ineffective any possible outcome in this matter.”

Dicey stuff, this court activity, especially when the state has all barrels blazing. But it would seem as if the judge considering the contempt-of-court action might have a bone to pick with NY Ag and Markets about lack of full disclosure, in which case one of the barrels could be pointed directly at the state’s foot.