Vernon HershbergerSometimes it’s possible to infer important clues about a legal case from a judge’s seemingly negative opinion. The articles about Wisconsin Judge Guy Reynolds rejecting a motion by farmer Vernon Hershberger to dismiss the case against him suggested Hershberger’s motion was a total loss.  

“The legal arguments of an Amish dairy farmer representing himself in a  criminal case miss the mark, according to a Sauk County judge, led the Wisconsin State Journal in an article last week.  

And, indeed, the judge is disparaging of most of the arguments made by Hershberger, who is defending himself against charges by the state that he has failed to obtain a retail permit and is operating a dairy plant without a permit in making his unpasteurized milk and other foods available to food club members. Of Hershberger’s legal arguments in favor of dismissing the case, Judge Reynolds states, “Most are set forth in conclusory terms and suffer from a lack of valid legal authority or undeveloped arguments, or both.”    

The fact of the matter is that judges rarely accede to defendants’ dismissal requests. Defendants invariably file them in hopes of being that one in one hundred, or whatever the ratio is, that hits the jackpot.  

But in his overall negative assessment of Hershberger’s arguments for dismissal, the judge actually indicates that Hershberger could have an important argument on which the entire case could well ride.  

Hershberger had argued he was exempt under Wisconsin law from the state’s requirement that he have a dairy plant license because his food club members are operators of the farm. To which the judge observed:  “Specifically, defendant notes that the exemption applies to a farm manufacturing or processing dairy products solely for the consumption by the owner or operator of the farm, or members of the household for non-paying guests or employees… The gist of defendant’s contention here appears to be that since the defendant has entered into a number of contracts with other persons which contracts provide an ‘ownership interest in farm animals and other products produced’, he is exempt from prosecution. 

“The state counters that the exemption does not apply. The state points out that the exemption set forth above applies to a ”farm manufacturing or processing dairy products solely for consumption by the owner or operator of the farm … ‘ and that the very contracts upon which the defendant relies provide that defendant is the only owner and operator of the farm. Further, the state argues that defendant fails to explain how paying an annual fee to the defendant under the contracts makes the other party to the contract (applicant) an ‘operator’. Moreover, the state says, the defendant’s own contract designates defendant as the ‘farmer’ and ‘owner/holder’ of the farm… In addition, the contracts… assign to defendant all of the direct physical duties of operating the farm. 

“In defendant’s 41 page reply, he reasserts his view that he is exempt from the statutory licensing requirements because ‘only co-owners, workers, and family’ consume the products he produces… None of the foregoing arguments have to do with subject matter or personal jurisdiction. Both parties have a different view of the facts and what reasonable inferences may be drawn from those facts. 

“In this sense, the exemption issue may have much to do with what the state ultimately must prove beyond a reasonable doubt at trial. At the same time, defendant’s arguments do not provide a valid legal basis for dismissing the complaint at this stage of the proceedings.” 

In other words, the case likely hinges on how a jury interprets the membership agreement, or contract, Hershberger has with his food club’s members. To the extent it makes the members “operators” of the farm, he may have a winning case, exempting him from Wisconsin regulations for commercial dairies. In a followup brief asking the judge for summary judgment, or an immediate exoneration, Hershberger indicates he plans to have at least 25 members testify that they, indeed, are operators of the farm, carrying out voluntary chores on the farm to help in essential farm operations.  

I’ve long felt that a key to convincing judges and juries about the legitimacy of private farm sales lies in the integrity of the contractual arrangements. They may cover leasing, or actual ownership or investment, but whatever the situation, they need to be legally sound, based on a state’s requirements. This country runs on contracts, and the courts have repeatedly confirmed the sanctity of contractual arrangements.

A hearing is scheduled next Wednesday on a prosecution motion to limit what Hershberger can present as evidence on his behalf. That, together with the judge’s refusal to dismiss the case, are all part of pre-trial maneuvering in advance of the actual trial, scheduled for September 25.  

A  rally on behalf of Hershberger will be held at 1:30 p.m. at the Sauk County Court House in Baraboo WI, in advance of his 2:30 court appearance.