“Heads, the regulators win, Tails, raw milk loses” in recent court decisions

From David E. Gumpert on The Complete Patient blog:

That's Wisconsin raw milk farmer Mark Zinniker, at the right. Click photo for source.

“”Heads I win, tails you lose.”

I couldn’t help but think about that kids’ expression–the kind of everything-going-your-way fantasy all kids dream about at one time or another–as I read through Wisconsin judge Patrick Fiedler’sopinion in two cases challenging the state’s ban on raw milk sales and distribution.

The judge ruled in the cases of Kay and Wayne Craig, owners of Grassway Organics Farm Store; and Mark and Petra Zinniker. (The cases had been consolidated into a single case.) They sought to distribute raw milk through farm stores to herdshare owners, and also argued that their stores didn’t require retail permits from Wisconsin’s Department of Agriculture, Trade, and Consumer Protection’s (DATCP). The judge ruled against them on all counts.

The judge’s ruling is quite convoluted, but essentially he seems to be saying that, despite the fact that DATCP had contradicted itself in both allowing and banning raw milk over the last decade, the agency really was consistent. For example, the judge notes that on May 8, 2009, DATCP “added a new interpretation of (the WI raw milk statute). DATCP stated that for an ownership interest to qualify as a ‘bona fide ownership interest in the milk producer,’ the ownership interest must have been acquired with an expectation of financial profit. ‘It does not include “cow shares,” license shares, or other devices that are merely designed to facilitate the illegal sale or distribution of raw milk…'”

The judge seems to agree that Wisconsin’s raw milk statute “is ambiguous,” particularly  “as to what constitutes an ‘incidental sale,’ which is allowed under state law. The judge explores dictionary definitions of “incidental,” and concludes they contradict each other as well.

So, he eventually concludes DATCP should be given “great weight deference”–essentially allowed to do whatever it wants–primarily because “the Agency’s construction of (the state’s raw milk statute) has remained consistent.”

As I said, heads I win, tails you lose.

He also states that any claim to consume the foods of one’s choice is “totally without merit.” Why? Because “arguments unsupported by references to legal authority will not be considered.” In other words, because no legislature or judge has declared such a right previously, he is prohibited from declaring such a right now.

Such a judicial mindset would presumably have made it impossible for judges to rule that such matters as school segregation or prohibitions on abortion were violations of fundamental rights. …”

Get the whole story on the Complete Patient blog.