On Tuesday, October 13th, Lake View Natural Dairy (LVND) was in Cook County District Court defending private contract rights (among other rights) against intrusion by the Minnesota Department of Agriculture (MDA). LVND is a privately owned, family farm that milks 16 cows and offers that raw/unpasteurized milk directly to individual men and women who wish to purchase it from their milk house. There are also products from the farm/garden that are offered along with cookies baked in their private home kitchen. All the products are offered in a small milk house that is open 24/7 and payment is made by the honor system which consists of a coffee can.
LVND’s attorney, Zenas Baer, gave a powerpoint presentation to layout the arguments (see the presentation given in court here), which spoke directly to when can private men and women agree to associate with one another privately to give, exchange or sell food (private contract rights). Private association/contract rights speaks directly to the argument of when may I bake in my private home kitchen or milk cows on my private farm and give or sell that product to my private neighbor (not a store or commercial entity). Sell is defined in MN Statute 34a.01sub.12 as: Sell; sale. “Sell” and “sale” mean keeping, offering, or exposing for sale, use, transporting, transferring, negotiating, soliciting, or exchanging food; having in possession with intent to sell, use, transport, negotiate, solicit, or exchange food; storing, manufacturing, producing, processing, packing, and holding of food for sale; dispensing or giving food; or supplying or applying food in the conduct of any food operation or carrying food in aid of traffic in food whether done or permitted in person or through others. (Highlight added).
The court asked the State, in the context of someone producing food in their private kitchen or property (like LVND), where is the line at which the MDA believes they can not pass in terms of inspection with an Administrative Inspection Order (which is not a probable cause warrant, but exercising their police powers of “inspection in the absence of violation/complaints” to check if violations might be occurring, according to the MDA’s perceived standards). State Assistant Attorney General Kieley, representing the MDA, stated that the MDA may inspect ANYWHERE, regardless of private ownership, where food is processed and held for sale. When the definition of sale is understood, which was pointed out in court by Baer, the State is saying they may interject themselves, as an uninvited third party, into anyone’s private home that is preparing food to give to another private man or woman, which the State did not disagree with. This includes pot lucks at your church, bake sales, extra yogurt you make and give to your neighbor, maple syrup you process to give to others for holiday gifts and the examples could go on and on.
Whether the MDA would go into everyone’s private homes and kitchens where they are processing foods for gift or sale to another is not the point, they likely would not. The point is, the MDA believes they have the legislated power, given to them by elected officials who are representing the interests of the people whom elected those officials to enter our homes under the above circumstance. I don’t know many who would claim our interests embrace this idea of unabridged entry into our homes and kitchens, where food is processed to give to another, by a state agency. The Court pressed the State and asked for an example of where the MDA could not go. Kieley replied that the State would assume there would be no processing of food in the bedroom of the owners of LVND, so that is an area that they believe they would not tread. But, for clarity, inspection includes searching for records and documents (like the Inspection Order left at LVND), so don’t leave your notebook computer in your bedroom. It would seem unreasonable to allow the MDA to hold the above interpretation of their police powers of intrusion into individual privacy rights. The MDA’s desire to regulate must yield to constitutional privileges (statement by Baer).
The Court also asked LVND’s attorney where “the line” that the MDA could not pass, using an Administrative Inspection Order to inspect for compliance or violation concerning the processing of food for sale, would lie (again, which includes giving of food by private men/women to other private men/women). Baer replied (I am paraphrasing from memory) that the point at which private men and women were producing foods, of which the origin was largely known (like products of the private producers farm/garden/home kitchen) to the private man or woman consuming those foods (meaning the consumer is informed) would be a point, or line, at which the MDA would not be allowed to invite themselves into and intrude upon the personal association/contract as an uninvited third party. Again (stated by Baer), the MDA’s desire to regulate must yield to an individual’s constitutional privileges (right of personal contract and right of association).
Processing which involves many producer’s products (which would largely be unknown to the private man/woman) being co-mingled into another product in large quantity and offered into commerce, would rightly be a place in which the MDA should inspect and regulate. Those multi-tier food processing actions is where the MDA is needed to assure food safety due to the complicated, multi-tier food to consumer relations. A private, single tier relation of farm/gardener/home baker direct to consumer, is not a place the MDA is needed. I do not want my privacy intruded upon because I chose to grow/bake food and give, exchange or sell food directly to my neighbor, friend, church or community.
In another line of questioning, LVND’s attorney stated that the State must go through the rule making process (legislation) to control the sale of raw milk because the current law only gives the State the authority to control the sale of milk from Grade A and Grade B dairies (which LVND is neither). The Court asked the State to address the single issue of selling of raw milk by giving the court the MN statutes that control the sale of raw milk. The State’s answer was that they could not just answer a single question about raw milk, because there were many other products being sold at LVND. The court again asked for the statues controlling the sale of raw milk. The State again would not directly answer Judge Cuzzo’s question. The State’s refusal to directly answer that question shows their indirect admission that there are no rules in statutes that give the MDA police powers to control the sale of raw milk. If there are no statutes controlling the sale of raw milk (which by statute would be contained in MN Statutes 32.391 to 32.398) the MDA is not allowed to make law, but must go through the legislative process if they desire to regulate raw milk. You can see more of this argument contained in Baer’s powerpoint to the court.
There were several other arguments that were presented and Judge Cuzzo asked probing questions of each side. It was indicated that the decision upon whether another evidentiary hearing was needed would be made in the next couple of days by the State, but Kieley indicated he thought it was unlikely. Judge Cuzzo, barring another evidentiary hearing, would issue his ruling on these complicated and weighty decisions in the upcoming weeks.
As for LVND, the next step will likely be an appeal by either side. In an after court interview, Attorney Baer, stated he could see this case again reaching the MN Supreme Court as did the Hartmann case (similar circumstances) in 2005. The unfortunate circumstance we find ourselves in is that the MDA is attempting to regulate from a position of “assumed governmental control,” rather than the position that our federal and state constitution dictate of “assumed individual liberty.”