Attorneys for Vernon Hershberger of Loganville have filed a petition requesting the Wisconsin Supreme Court review a ruling against the farmer issued by the 4th District Court of Appeals.
Appellate court judges this summer agreed with a Sauk County District Court judge’s decision not to allow jurors to view a hold order that state inspectors placed on Hershberger’s products following a 2010 raid on his farm. Violations of that hold order eventually led to Hershberger’s only conviction among multiple charges that were heard by a jury during his high profile trial last year.
“We just want to get the word out, and get it into the record, that they have to have a valid reason before they can get a holding order,” Hershberger said in a phone interview Wednesday.
The owner of Grazin’ Acres farm in Loganville said he wants to clear his name of the May 2013 misdemeanor conviction that followed an eight-day jury trial at the Sauk County Courthouse in Baraboo.
State inspectors and local law enforcement raided Hershberger’s farm in June 2010, and placed seals on containers and coolers in an on-site grocery store. The next day, Hershberger openly violated the order and began selling to members of his dairy farm.
The Wisconsin Department of Justice later charged him with failing to obtain the proper food production and sales licenses, and for violating the hold order.
A Sauk County jury acquitted Hershberger of three charges related to the unlicensed production and sales of dairy pruducts, but found him guilty of violating the hold order. During the trial, Sauk County Circuit Court Judge Guy Reynolds did not permit jurors to see the full text of the hold order.
The judge agreed with the DOJ’s argument that Hershberger had a legal opportunity to challenge the hold order immediately after it was issued, but chose not to do so. State attorneys said challenging the order years later at trial was not permissible, and would be considered a “collateral attack.”
The appeals court agreed with that decision. But in his request for review with the Wisconsin Supreme Court, Hershberger’s attorneys argue that restrictions on “collateral attacks” should not have precluded their client from introducing evidence of bias, falsity, or error.
Plymouth-based attorney Elizabeth Rich said the defense wanted to show jurors that state inspectors were biased against Hershberger when they raided his farm. The hold order that DATCP Field Service Director Jackie Owens placed on Hershberger’s products said the items were “adulterated” and “misbranded.”
“She knew they weren’t,” Rich said Wednesday. “She knew the conditions at the farm were spanking clean. The items were not misbranded. They were not adulterated, not deleterious to human health.”
Rich said she hopes Hershberger’s case will impact the level of deference that courts show government agencies. She said judges often do not challenge the conclusions of investigators because they are deemed to have expert knowledge.
“We are elevating these bureaucrats to a level of power that is unprecedented in our history,” Rich said. “This is an example of the problem of the lack of judicial scrutiny that we give to bureaucrats.”
The raid on Hershberger’s farm came only weeks after then Gov. Jim Doyle vetoed a bill that would have allowed limited sales of raw milk.
Hershberger was known for his advocacy of unpasteurized milk. Although none of the charges against him were directly related to the ban on raw milk sales, his supporters alleged that is what drew the attention of state regulators.
Hershberger was acquitted of selling and producing dairy products without a license in part because the people who ultimately consumed the items were considered members of his farm under a contract.
The DOJ would not comment on the request for a Supreme Court review of the case, agency spokeswoman Dana Brueck said Wednesday.
Wisconsin Supreme Court spokesman Tom Sheehan said there is no timetable for the high court to decide whether it will take up the matter.