Motion to Add to Court Record – Sheriff’s Statement Denied-UPDATED



Their has been little happening since the March 9th court hearing concerning Lake View Natural Dairy (LVND) vs. Minnesota Department of Agriculture (MDA).  The court case is about the MDA attempting to force inspection and regulation upon LVND (a private farm that sells it’s products directly to informed private men and women, no commercial business is conducted) that would likely result in LVND shutting it’s doors due to financial collapse.  We have been waiting with anticipation for a decision by Judge Cuzzo concerning the constitutional issues raised by LVND’s attorney (Zenas Baer). In the interim Baer did file a significant Motion to Supplement the Record (4-29-15 Supp Motion) on April 29th, 2015.  Specifically to add to the court record a signed statement by retired Sheriff Mark Falk that states:

“I, Sheriff Mark Falk, previously the elected Sheriff of Cook County, MN (February 1, 2005 to June 30th, 2014-retired), swear that in or about the month of May, 2014, I received a phone call from a female named Kim or Kimberley that was an attorney for the Minnesota Attorney’s office. She was involved with prosecution/enforcement activities concerning Lake View Natural Dairy owned and operated by David Berglund.  Kim spoke to me about assisting the State Attorney’s Office with the enforcement of an inspection via the Minnesota Department of Agriculture (MDA) upon Lake View Natural Dairy, whom had been refusing inspection by the MDA. I informed Kim that I was aware of the previous inspection attempts.  I told Kim that I would not allow the State’s Attorney’s Office or the MDA to use the Cook County Sheriff’s Office in any manner to assist in the enforcement of inspections upon Lake View Natural Dairy, due to my concerns over whether the MDA had jurisdiction to enforce the inspection upon Lake View Natural Dairy due to the Minnesota Constitutional Article 13, Section 7 protections.”  MarkFalkStatement

The action, or refused action, by a sitting Sheriff when the MDA was attempting to force their will upon LVND is significant, because the Sheriff is the highest elected local official that has the power to use force upon men and women.  They also have the responsibility to protect men and women not only from individual criminals, but from other branches of local, state and federal government that may by acting beyond it’s limits of authority upon a man or woman or even upon the Sheriff Office itself (see Mack/Printz v. US).  This is exactly what retired Sheriff Falk did (protecting LVND’s rights against a government agency attempting to surpass their limits of authority) when he refused assistance to the MDA in forcing inspection upon LVND.

Also, Baer sought to add the fact that the Cook County Board of Commissioners passed a letter of support for LVND, private farmers/gardeners and private consumers concerning Minnesota Constitutional Article 13, Section 7:  “No license required to peddle. Any person may sell or peddle the products of the farm or garden occupied and cultivated by him without obtaining a license therefor.” 

The Letter of Support passed by the Cook County Commissioners stated the following.

“The Cook County Board of Commissioners will support Lake View Natural Dairy and their protection under Minnesota Constitutional Article 13, Section 7:

‘No license required to peddle. Any person may sell or peddle the products of the farm or garden occupied and cultivated by him without obtaining a license therefor.’ 

We believe Article 13, Section 7 protects Lake View Natural Dairy from governmental intrusions licensing, when Lake View Natural Dairy is privately associating with private men and women to sell and peddle the products of their farm at their farm location. 

Furthermore, we support the consumer’s right under Article 13, Section 7 to privately associate with other private farmers or gardener’s in a private relationship to purchase these products of the farm or garden.

We support Lake View Natural Dairy’s right to sell products of the farm under Article 13, Section 7 protections, while following common sense safety measures applicable to a privately run dairy farm.

Notice that the letter does NOT only identify LVND, but identifies ALL private farmers, gardeners and private men and women who purchase their products. While not necessarily admissible to influence Judge Cuzzo’s decision in this case (see 5-14-15 Judge Cuzzo Response), the fact that the Cook County Commissioners passed this Letter of Support is the proper role of elected officials speaking for what they believe their constituents want and believe, which is a pure example of how a representative republic should operate.

The MDA (represented by State Assistant Attorney Kimberly Middendorf) responded to the Motion from Baer through a letter (5-7-15 Middendorf Reply), which minimized and misrepresented what the court had done, saying “Respondents were granted a continuance of MDA’s motion hearing for the express purpose of providing them additional time to prepare for it.”  Maybe I’m misinterpreting, but this statement from the State Attorney makes it sound like Baer just needed more time to prepare a defense, which is FAR from the truth. (UPDATE 6-7-15:  To be intellectually honest, I did misinterpret the above quote from the Attorney General.  The quote was referencing the fact that the original court date had been set for February 9th, 2015.  LVND then retained an attorney and the court date was rescheduled for March 9th, 2015 to allow time for the LVND attorney to prepare, just as stated in the quote.  The misinterpretations on my part I have struck through.)

I feel like I was at a different court hearing(The following statements still hold true).The court hearing that I observed had many state and federal constitutional issues raised by Baer (Affidavit of Zenas Baer in Support of Berglunds Challenge to Jurisdiction of Minnesota Department of Agriculture Right of Inspection of a Family Farm & Reply to MDAs Application for an Order for Inspection of David Berglund and Lake View Natural Dairy) that were significant enough for the court to stay their own order for inspection.  It is clear that the courts actions were to allow the court time to further determine how these issues, raised by Baer, may or may not effect the outcome of the courts decision/ruling as to whether Berglund is in contempt of the original Order for Inspection and whether the MDA is acting within their limits of authority (they do have limits). Or if the MDA is over-reaching and infringing on the protected actions of LVND and it’s owners.  I’m sure it is normal for attorneys to minimize the oppositions arguments, but it does seem intellectually dishonest.

The State Attorney ends the letter (5-7-15 Middendorf Reply) with, “It is long past time for Lake View Dairy to be inspected, like all other food processors and retail food stores in Minnesota.”  With all due respect, I don’t think the State Attorney understands that MN Constitutional Articles (like Article 13, Section 7) are superior to ALL other MN statute and that the MDA’s interpretation of a “food processor” or “retail food store” just doesn’t apply to a privately run dairy farm (or private gardener).  As the MN Supreme Court sited in State of Mn v. Hartmann (2005):

“This view is supported by this court’s observation in a 1925 case that article XIII, section 7, gives “recognition [] to the fact that tillers of the soil stand in a peculiar position in reference to the marketing of their products, and it prohibits the imposition of a license to sell or peddle the same.”  Minnesota Wheat Growers’ Co-op Marketing Ass’n v. Huggins, 162 Minn. 471, 480, 203 N.W. 420, 424 (1925).”

The above passage firmly distinguishes and separates private farmers/gardeners from “all other food processors and retail food stores in Minnesota,” the later being subject to licensing, but NOT the former “tillers of the soil”.  In addition to not being subject to licensure, during 1906, when Article 13, Section 7 was passed, regulation and inspection were non-existent, yet the MDA believes that article was written to purposely exclude inspection and regulation.  It would be amazing for a legislative body to write a law to exclude constructs that don’t yet exist.  In reality, the legislative body in 1906 removed the state’s ability to license private farmers/gardeners which completely removed the state from what they were doing to intrude on the private farmer/gardener’s ability to produce it’s products and privately associate directly to private men and women in the trade of those products.  The fact that Article 13, Section 7 was passed in 1906 does not minimize the importance or magnitude of the article, no less than time would adversely effect the over 200 year old protection of men and women’s freedom of speech, religion or assembly as granted by the U.S. Constitution.

Judge Cuzzo issued a response (5-14-15 Judge Cuzzo Response) to Baers Motion to Supplement the Record (4-29-15 Supp Motion) and the State Attorney’s letter (5-7-15 Middendorf Reply).  Judge Cuzzo denied the motion to supplement the record of the hearing for various legal reasons (largely do to the evidentiary period being closed for the current decision being issued), and I respect this denial.  Even though this was disappointing, there was something positive in the judge’s ruling on this motion.  Judge Cuzzo stated in his memorandum responding to the Motion to Supplement the Record:

“As argued by Mr. Berglund / Lake View Dairy at the hearing, the issues of the underlying order and the constitutional challenges raised are issues to be determined by the Court.”

Based on this quote, it appears that the Court will be issuing a decision that addresses the constitutional arguments (or at least some of them) that were raised by Baer during the March 9th, 2015 court hearing.  The Court is not obligated to address these constitutional issues, and if it did not, that would be very negative for the LVND arguments proceeding forward.

As you can see, there are many complex issues that are in need of attention concerning this issue.  The decision will not just be effecting LVND, but any one of us in Cook County or greater MN that would like to sell our neighbor some extra eggs or grow extra potatoes and sell them to a friend or acquaintance up to and including private farms selling their products. This case is being followed nationally (see previous posts about national articles) and could be a model for other states to follow.  This is why we will need the support of everyone willing in our community and across the state.

Judge Cuzzo’s written decision is scheduled to be released by June 9th, 2015.  I will be posting the decision as soon as possible.