This is the second in a series of articles about raw milk by the Center for Media and Democracy's Food Rights Network [3]. For more about raids on raw milk farmers and eaters, see yesterday's article [4].

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Wisconsin dairy farmers are appealing [5] a state judge's ruling that they do not have the right to own a dairy cow or drink the unprocessed milk from their own cows.

Mark and Petra Zinniker [6], who sought to distribute raw milk to herd shareholders through their private farm store, received a judgment from state Circuit Court Judge Patrick Fiedler ruling against them on all counts [7] in August.

In response, the Zinnikers, their shareholders and their lawyers at the Farm-to-Consumer Legal Defense Fund [8] (FTCLDF) filed a clarification motion [9], on which Judge Fiedler filed his decision and order [10] on September 9th.

Judge Fiedler's Ruling

The judge's decision contains a strongly-worded denial of fundamental food and farming rights:

no, Plaintiffs do not have a fundamental right to own and use a dairy cow or a dairy herd;

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. ...

Denying and Disparaging Rights

Neither the Wisconsin State Constitution [11] nor the U.S. Constitution [12] enumerate any food rights or these kinds of farmers' rights.

However, given that humans have farmed, and drunk the milk from their dairy animals, for more than 5,000 years [13], the breadth of the court's ruling has astonished many.

As the Ninth Amendment [14] to the U.S. Constitution concedes, not all the rights of people are written out, providing that the "enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

In spite of this, Judge Fiedler has made several blanket denials of civil rights, based on his argument that the Plaintiffs' "reasoning behind why the court should declare that there is a fundamental right to consume the food of one's choice" is "underdeveloped."

Emphatic Decision

"While it is true," Fiedler's decision continues, that the cases cited by the farmers in support of their reasoning "do in fact stand for the propositions of law they argue, the Plaintiffs have failed to adequately explain why those propositions support their argument. ... This court is unwilling to declare that there is a fundamental right to consume the food of one's choice without first being presented with significantly more developed arguments on both sides of the issues."

The cases that Fiedler references, however, are quite different from those cited in the clarification motion [9], which goes into great detail and cites multiple cases in support of each point (see pages 5-7).

Raw milk expert and journalist David Gumpert commented [15] on his blog "The Complete Patient" that the decision reads "as if to show how pissed he was at being questioned." Indeed, it is an emphatic decision, with its point-by-point denial of all of the rights asserted by the farmers and their shareholders.

Judge on His Way Out

Even before his ruling, Judge Fiedler was scheduled to step down from his post [16]. "I wanted to go back to being an advocate and being a lawyer," he said. He is slated to work as a trial lawyer with the Axley Brynelson law firm.

When asked what cases were most memorable in his judicial career, Fiedler listed "the cold-case murder trial of Eugene Zapata in 2007, the Penny Brummer murder trial in 1995 and the Oto Orlik trial in 1999."

Cases of farmers and herdshare owners fighting for rights "to eschew big-agribusiness in favor of sustainable, local farming practices" and "to produce, obtain and consume the food of one's choice for oneself and one's family" may be a far cry from these criminal cases; but his extraordinarily harsh decision on the rights of farmers is likely to have a far greater effect, if it is allowed to stand as precedent.

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For more on raw milk, see the Food Rights Network [17].