Do Wisconsinites have a constitutional right to privately own a cow, to drink raw milk, and to enter into private contracts with farmers?
Petitions for review are being 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 to acquire raw milk and other fresh sustainably grown and raised foods. Two of the cases, the Ziniker petition and the Grassway petition will be filed Monday, October 6, 2014. The Vernon Hershberger petition was filed in August, 2014.
Circuit court Judge Patrick J. Fiedler, ruled against both the Grassway and Zinniker plaintiffs who separately filed motions for Declaratory Judgement. In response to the Zinniker motion Fiedler, ruled that “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”.
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.
Zinniker plaintiff Gayle Loiselle, said “The WI appellate court refused to rule on the question before them on the constitutionality of food rights, and instead deflected the issue to license violations. The plaintiffs in all three cases, and thousands more seeking fresh food directly from the farm claim they do have a fundamental constitutional right to choose what they eat, and to choose where that food comes from. They also say it’s a constitutional right to conduct business directly between farmers and citizens without government interference, and without a middleman, such as food processors or distributors.”
The Grassway motion declares they 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 passed both the Senate and Assembly by a wide margin and was then vetoed by Governor Doyle. Legislation was again introduced in the 2011/12 and 2013/14 sessions and died in committee both times.
In 2013 a jury acquitted raw milk farmer Vernon Hershberger, charged with illegally distributing raw milk, finding nothing wrong with Hershberger providing raw milk for members of his private food club. During the trial, judge Guy Reynolds, admonished the attorneys and witnesses that the words raw milk, and liberty, were not to be spoken in his court room. “It’s a dangerous sign for our society that we have judges that refuse to hear of liberty in the courtroom, and to say we have no right to feed ourselves.” Loiselle said.
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 contains 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 it’s health benefits. European studies show a decrease 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.
Loiselle said “This is about basic rights; do we have the right to grow, raise and eat the foods of our choice; the right to not eat government regulated foods along with the known contaminants they contain; and the right to conduct business directly between individuals and farmers outside the jurisdiction of government agencies?
And, does the supreme court have an obligation to the people of Wisconsin to review these three cases on the merits of the constitutional rights in question?”