For upwards of a decade, Wisconsin’s small raw-milk producers have been doing battle with the state’s Department of Agriculture, Trade and Consumer Protection, as well as the courts and politicians. DATCP has refused to allow the farms to distribute milk privately, which they insist is their right under the U.S. Constitution. Gayle Loiselle is a Wisconsin resident who has been in the middle of the battles, both as a member of a herd share and as a political activist. She is due to be discussing the history and politics of raw milk in Wisconsin tomorrow (Thursday) on Wisconsin Public Radio’s Joy Cardin Show at 6 a.m. (Central). In this analysis, she provides insights into the real stakes now before the Wisconsin Supreme Court.

By Gayle Loiselle

Gayle LoiselleThree Wisconsin farms now have petitions for review before the state’s Supreme Court –all challenging the legality and constitutionality of contracts between farmers, private citizens and private food groups to acquire or provide fresh unpasteurized milk. The appeals are admittedly long shots, but all concerned decided that the underlying Constitutional principles made the cases worth pursuing before the state’s highest court.

Two of the cases, the Zinniker and Grassway petitions, were filed on Monday, October 6, 2014. The Vernon Hershberger petition was filed in August, 2014. All three cases are represented by the attorneys of the Farm-to-Consumer Legal Defense Fund, Elizabeth Rich and David Cox.

Grassway Organics Farm Store, owned by Wayne and Kay Craig, from New Holstein, WI, filed for Declaratory Judgment against the Department of Agriculture, Trade, and Consumer Protection (DATCP), maintaining they had all the necessary licensing to provide raw milk to members of their private farm store. However, over the years DATCP has repeatedly changed its interpretation of state statutes and licensing stipulations, ultimately making it impossible for Grassway plaintiffs to comply. Then-Judge Patrick J. Fiedler, agreed with DATCP, that they were in violation of licensing requirements, and ruled against Grassway plaintiffs, as did the Court of Appeals.

Vernon Hershberger’s case was tried before a jury, which found nothing wrong with Vernon providing raw milk for members of his private food club. He was found not guilty on three counts of license violations, but was found guilty on a fourth count of violating a DATCP holding order. Because the jury was kept from seeing and hearing all of the facts, Hershberger appealed the guilty count, which was denied.

The Zinniker Plaintiffs, farmers Mark & Petra Zinniker, represent a third model of direct farm-to-consumer business whereby an LLC (limited liability company) purchased the Zinnikers’ entire herd of cows at market value and paid the Zinnikers to board and manage them. Zinniker shareholders, who are among the plaintiffs, then filed for Declaratory Judgment against DATCP, asking a judge to uphold their rights and declare their business arrangement legal. The motion was denied by the circuit court and the appellate court refused to rule on the constitutionality of their rights, and diverted the issue to license violations. In siding with DATCP, the judges claimed the business contracts were void because the Zinnikers did not have a milk producers license.

Thousands of Wisconsin citizens disagree with the rulings in all three cases. The U.S. Constitution’s Ninth Amendment reads “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” It does not say you can sell food from a farm directly to neighbors and community members only so long as you have a license!  These citizens maintain they have a constitutional right to choose what they eat, and to choose where that food comes from. And that farmers and citizens have the right to exchange money or work for food, without government interference, and without a middleman, such as food processors or distributors.

In 2010, an unprecedented 800-plus people voiced their opinion at a public hearing in Eau Claire, Wisconsin in support of legislation that allowed for on-farm sales of raw milk, which later comfortably passed in both the Assembly and the Senate, only to be vetoed by then-Governor Doyle.

How can something like that happen, where many thousands of people and their legislative representatives are for something very straightforward like the right to obtain a food of their choosing, and it is denied? It bears drawing on the Declaration of Independence“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,–That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it,” That veto clearly shows the disconnect between the rights and freedoms of the people and our political system.

Part of the problem is we live in an advocacy-based society that on some level is sincerely concerned about public safety. We have regulators educated by industry-sponsored textbooks that teach nonsense like “bacteria are bad” and “GMO’s will feed the world.” Moreover, some of these misguided regulators honestly believe they are protecting people. And unfortunately, we also have legislative and judicial systems that are heavily influenced by campaign contributions and personal career goals.

All those factors together have created overreaching government agencies directed by overly emboldened politicians who use overly dependent populations to support an overly entitled industry. Which translates into industry dictating policy, that in turn becomes administrative law, and is then blindly enforced by agencies led by political appointees.

Just to go back in time…. three weeks before ex-Judge Patrick J. Fiedler started his new career as a trial attorney at a law firm that represents Monsanto in patent infringement cases, he responded to the Zinniker Plaintiffs’ motion for clarification saying:


  1. “no, Plaintiffs do not have a fundamental right to own and use a dairy cow or a dairy herd;
  2. no, Plaintiffs do not have a fundamental right to consume the milk from their own cow;
  3. no, Plaintiffs do not have a fundamental right to board their cow at the farm of a farmer;
  4. no, the Zinniker Plaintiffs’ private contract does not fall outside the scope of the State’s police powers;
  5. no, Plaintiffs do not have a fundamental right to produce and consume the foods of their choice”

According to this absurd ruling we can only eat what the government tells us we can, and farmers can only grow or raise government regulated food. So because a judge with an over inflated idea of his own power said it is so, the authorities are ready and willing to enforce it. To the point of armed raids on peaceful farms. 

This acting out of self-imposed power among judges is not uncommon. I’ll never forget the shock I felt while sitting in the courtroom during Vernon Hershberger’s trial listening to Judge Guy Reynolds admonish the attorneys and witnesses (after the jury was sent from the room) that the words “liberty and raw milk” were not to be spoken in his court room. According to DATCP and Reynolds, the law required prosecuting Vernon on license violations, and it just didn’t matter that facts of the case were specifically about raw milk and liberty.

I have children whose lives I am responsible for, with futures I’m deeply concerned about. And I fear for the health of our planet and its ability to provide for us all. To take away people’s right to self- reliance, to live sustainably, to look after their own health; to take away people’s right to be responsible for themselves and their families to feed themselves…is wrong on many levels, and will inevitably result in a weak, sick, ignorant, dependent and easily manipulated population.

So for now, the question of food rights is in the hands of the justices of the Wisconsin Supreme Court. The way I see it, the Justices have a choice; cave in to political pressure and deflect the issue as the lower courts have done, or agree to review these three cases on the merits of constitutionality that pits food profit against food freedom.