Raw Milk and Food Rights Reach the Wisconsin Supreme Court

Do Wisconsinites have a constitutional right to privately own a cow, to drink raw milk, and to enter into private contracts with farmers?

October 6th, 2014

Madison, Wisconsin – Petitions for review will be filed with the Wisconsin Supreme Court in three separate cases involving the legality and constitutionality of contracts between farmers, private citizens and private food groups’ rights to acquire raw milk and other fresh sustainably grown and raised foods. Two of the cases, the Zinniker petition and the Grassway petition, will be filed 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.  

The now former Wisconsin Circuit Court Judge Patrick J. Fiedler, ruled against both the Grassway and Zinniker plaintiffs who had separately filed motions for Declaratory Judgment. In response to the Zinniker motion, Fiedler ruled:  “…no, plaintiffs do not have a fundamental right to consume the milk from their own cow,” and “no, plaintiffs do not have a fundamental right to produce and consume the foods of their choice.”

Zinniker plaintiff Gayle Loiselle said that, “The Wisconsin appellate court refused to rule on the question before them regarding the constitutionality of food rights and instead deflected the issue to license violations”. The Ninth Amendment to the U.S. Constitution states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments.

Loiselle continues, that “The plaintiffs in all three cases – along with thousands more seeking fresh food directly from the farm – believe they have a fundamental constitutional right to choose what they eat, and to choose where that food comes from. We have constitutional rights to conduct business directly, between farmers and citizens – without government interference and without middlemen like food processors or distributors.”

The Grassway motion declares plaintiffs had all necessary licensing and that the Wisconsin Department of Agriculture, Trade, and Consumer Protection (DATCP), repeatedly changed its interpretation of state statutes and licensing stipulations, ultimately making it impossible for Grassway Farm to comply. Again, Judge Fiedler agreed with DATCP, and ruled against Grassway Farm.

In 2010, over 800 people packed a public hearing in support of legislation to legalize the sales of unpasteurized dairy products. The legislation overwhelmingly passed both the Senate and Assembly by a wide margin, but was vetoed by then-Governor Jim Doyle. While legislation was re-introduced in the 2011/12 and 2013/14 sessions, it was killed in committee both times.

“There is a clear disconnect between citizens’ legal rights and wishes and Big Ag, which once again, is over-reaching in an effort to exercise undue control in the name of profit,” Loiselle said. “And we’re saddened and frustrated that our legislators are not representing the people in this critical matter.”

The third case involves Vernon Hershberger of Loganville, WI. Hershberger was found not guilty on three of four counts. Hershberger, who was found guilty of violating a holding order, had his case tried before a jury who found nothing wrong with him providing raw milk for members of his private food club. During that trial, Judge Guy Reynolds admonished the attorneys and witnesses, stating that the words “raw milk” and “liberty” were not to be spoken in his court room.

“Clearly, it’s a dangerous sign for our society that we have judges who refuse to hear of liberty in the courtroom, and to say we have no right to feed ourselves,” Loiselle said.

“This is about our basic human rights,” Loiselle said. “Do we have the right to grow, raise and eat the foods of our choice? The right to refuse government regulated foods – along with the known contaminants they contain? And, do we have the right to conduct business directly between individuals and farmers outside the jurisdiction of government agencies? We believe the supreme court has an obligation to the people of Wisconsin to review these three cases on the merits of these constitutional rights now under question.”

Additional Information

• Wisconsin’s 26 billion dollar-a-year conventional dairy processing industry largely favors 2000 – 5000 cow industrial farms: Concentrated Animal Feeding Operations (CAFO’s).

• Milk from CAFO’s can contain harmful pathogens and requires processors to pasteurize the milk in order for it to be consumed safely.

• Pasteurized fluid milk sales are falling nationwide for a number of reasons, including links to causing allergies and asthma.

• Consumer demand for raw milk directly from small organic farms is growing steadily nationwide due to its health benefits.

• European studies show a decrease in allergies and asthma among children and adults who consumed raw milk.

• Proponents of raw milk ask that state statutes and dairy regulations be rewritten to clearly recognize the rights of private individuals and groups to choose to consume cow milk in its pure, unadulterated form, and the rights of farmers to provide it.

• The dairy industry in Wisconsin has strong political ties, and successfully lobbied against legal sales of raw milk in 2010 when Governor Doyle vetoed pro raw milk legislation.

• Three weeks after ruling, Judge Fiedler resigned the bench and took a position as trial lawyer with Axley, Brynelson, a law firm that represented Monsanto in patent infringement cases.