By Rick Barrett of the Journal Sentinel
A Sauk County farmer has lost his appeal on a misdemeanor conviction stemming from the sale of raw milk at his farm.
The 4th District Appeals Court on Thursday agreed with a ruling by the Sauk County Circuit Court against Loganville dairy farmer Vernon Hershberger.
Last year he was found guilty of one count of violating a holding order placed on products at his farm after a June 2010 raid by state regulators that was meant to shut down his business.
Hershberger said he engaged in an act of civil disobedience when he cut seals that state Department of Agriculture, Trade and Consumer Protection officials placed on coolers and shelves to keep him from distributing food products, including raw milk, to members of the farm's private buying club.
He posted an Internet video of himself titled "breaking the seals," which showed him opening chest freezers in the store that had been locked down by the holding order.
Hershberger's case was the first of its kind in Wisconsin, according to state officials who prosecuted him for not having licenses for his dairy operations and violating the holding order placed on products in his food store.
In a jury trial that gained national attention, Hershberger was found not guilty of all the charges except the misdemeanor related to the holding order.
He appealed the conviction, which carried a $1,000 fine, with his attorneys arguing that he wouldn't have been found guilty had the jury been allowed to consider evidence that could have shown there was no basis for issuing the holding order.
"We wanted the jury to have the opportunity to hear that evidence and evaluate it themselves," said Elizabeth Rich, one of Hershberger's attorneys.
The appeals court decision "continues a disturbing trend of the growth of (state) agency power, the decline of judicial power and the ability of agencies to exercise their authority unchecked," Rich said.
The appeals court said the lower court properly prohibited Hershberger from introducing the evidence, which included an unedited copy of the holding order.
"The redacted language of the holding order, identifying the factual basis for issuing the order, was not relevant to any issue properly before the jury in this case," the appeals court noted.
State officials agreed with the decision.
"This appeal is not a referendum on the desirability of on-the-farm sales of raw milk products. Rather, it involves the ways in which a defendant may — and may not — challenge a DATCP holding order. We agree with the Wisconsin Court of Appeals' conclusions on point," said Dana Brueck, a state Department of Justice spokeswoman.
Hershberger could not be reached for comment Thursday, and it's unknown whether he still has a buying club that sells raw milk — the issue that largely attracted the attention of state officials.
With little exception, state law prohibits the sale of unpasteurized milk to the public because it may carry bacteria that cause illnesses.
Raw-milk advocates say changing the law could give people access to fresh, unprocessed milk that contains beneficial bacteria. Opponents say there are no health benefits from unpasteurized milk that can't be obtained safely from pasteurized dairy products such as yogurt.
Currently, state officials say, they don't have any open investigations into illegal sales of raw milk. "Nothing has been brought to our attention," said DATCP spokesman James Dick.
Legislation to legalize raw milk sales stalled in 2013 but is likely to come back, according to some legislators. "Over time, more and more people will demand it, and ultimately the politicians will follow," said Sen. Glenn Grothman (R-Campbellsport).
The Hershberger case was largely heralded as a victory for raw milk supporters but hasn't resulted in other Wisconsin farmers challenging the state's authority.
"I think farmers are afraid because our government is behaving in kind of a heavy-handed fashion, in my opinion," said Vince Hundt, a raw milk supporter from Coon Valley.
The 4th District Appeals Court on Thursday agreed with a ruling by the Sauk County Circuit Court against Loganville dairy farmer Vernon Hershberger.
Last year he was found guilty of one count of violating a holding order placed on products at his farm after a June 2010 raid by state regulators that was meant to shut down his business.
Hershberger said he engaged in an act of civil disobedience when he cut seals that state Department of Agriculture, Trade and Consumer Protection officials placed on coolers and shelves to keep him from distributing food products, including raw milk, to members of the farm's private buying club.
He posted an Internet video of himself titled "breaking the seals," which showed him opening chest freezers in the store that had been locked down by the holding order.
Hershberger's case was the first of its kind in Wisconsin, according to state officials who prosecuted him for not having licenses for his dairy operations and violating the holding order placed on products in his food store.
In a jury trial that gained national attention, Hershberger was found not guilty of all the charges except the misdemeanor related to the holding order.
He appealed the conviction, which carried a $1,000 fine, with his attorneys arguing that he wouldn't have been found guilty had the jury been allowed to consider evidence that could have shown there was no basis for issuing the holding order.
"We wanted the jury to have the opportunity to hear that evidence and evaluate it themselves," said Elizabeth Rich, one of Hershberger's attorneys.
The appeals court decision "continues a disturbing trend of the growth of (state) agency power, the decline of judicial power and the ability of agencies to exercise their authority unchecked," Rich said.
The appeals court said the lower court properly prohibited Hershberger from introducing the evidence, which included an unedited copy of the holding order.
"The redacted language of the holding order, identifying the factual basis for issuing the order, was not relevant to any issue properly before the jury in this case," the appeals court noted.
State officials agreed with the decision.
"This appeal is not a referendum on the desirability of on-the-farm sales of raw milk products. Rather, it involves the ways in which a defendant may — and may not — challenge a DATCP holding order. We agree with the Wisconsin Court of Appeals' conclusions on point," said Dana Brueck, a state Department of Justice spokeswoman.
Hershberger could not be reached for comment Thursday, and it's unknown whether he still has a buying club that sells raw milk — the issue that largely attracted the attention of state officials.
With little exception, state law prohibits the sale of unpasteurized milk to the public because it may carry bacteria that cause illnesses.
Raw-milk advocates say changing the law could give people access to fresh, unprocessed milk that contains beneficial bacteria. Opponents say there are no health benefits from unpasteurized milk that can't be obtained safely from pasteurized dairy products such as yogurt.
Currently, state officials say, they don't have any open investigations into illegal sales of raw milk. "Nothing has been brought to our attention," said DATCP spokesman James Dick.
Legislation to legalize raw milk sales stalled in 2013 but is likely to come back, according to some legislators. "Over time, more and more people will demand it, and ultimately the politicians will follow," said Sen. Glenn Grothman (R-Campbellsport).
The Hershberger case was largely heralded as a victory for raw milk supporters but hasn't resulted in other Wisconsin farmers challenging the state's authority.
"I think farmers are afraid because our government is behaving in kind of a heavy-handed fashion, in my opinion," said Vince Hundt, a raw milk supporter from Coon Valley.
RSS Feed