Four years of legal wrangling between the state of Minnesota and a small dairy farm on Maple Hill may be coming to an end.
The state contends it has the right to inspect Lake View Natural Dairy (LVND) because the dairy offers raw/unpasteurized milk products to customers who come to the farm to buy the goods. David and Heidi Berglund, who own LVND, contend they have the right to sell their products to informed, willing consumers who come to their farm to purchase unpasteurized milk, yogurt, cream, butter, beef, eggs, cookies, etc.
Zenas Baer, LVND’s attorney, presented a nine-page Petition for Review to the Minnesota Supreme Court. In it, Baer argued that the Berglunds have a fundamental liberty to enter into a private contract with an informed consumer for the sale of milk.
“The lower courts found the right to ‘sell and peddle’ products of the farm failed to reach ‘fundamental’ status and therefore are subjected to the regulations to a rational basis review rather than strict scrutiny,” wrote Baer.
Baer also said, “The ‘Nanny State’ has no place at the bargaining table between informed consumers buying food from a farmer to nourish their family.”
After repeated attempts to inspect the farm had been rebuffed, MDA obtained an Administrative Order from the District Court to allow inspection of the Berglunds’ dairy and Heidi Berglund’s kitchen where she prepares yogurt from excess milk, stated Baer. “Berglund resisted asserting his constitutional right to ‘sell and peddle’ his milk to informed consumers.
“The consumers informed that Berglunds are not licensed nor inspected by either MDA or MDH, “[n]onetheless make a conscious choice to purchase the products from David Berglund rather than from a retail grocery store where the source of food is unknown. We know David Berglund and the quality of the food products he sells and believe that we have a protected right by the Constitution to make a decision to purchase products from him. Our constitutional protected right of association will be impaired if David Berglund is forced to close his doors.”
In keeping the MDA inspectors away, David Berglund cited a more than 100-year-old passage in the Minnesota Constitution that allows people to peddle products from their farm without a license.
In the petition, Baer also states, “The lower courts ruled, without analysis, that Berglund’s rights to sell and peddle raw milk from his farm is not a ‘fundamental right’ thereby depriving Berglund of ‘strict scrutiny’ analysis. Constitutional rights are by definition ‘fundamental rights.’ The right to ‘sell and peddle’ products of the farm is expressly stated, no interference necessary. The people add rights to the constitution to deprive politicians the power to legislate them away and to prevent bureaucrats from taking them away by administrative fiat. The Constitution was meant to trump statutes, rules, and bureaucratic edicts, not to become subservient to them. The creation and sustenance of a family, including presumably raw milk adherents, has been found to be a ‘fundamental’ right. Roberts v. United States Jaycees, 468 U.S. 609, 619, (1984).”
Baer also asserted, “The right of a consumer to choose the food she will put into her body is meaningless if the food she wants is unavailable due to government prohibition on its sale. Engaging in ‘sell and peddle’ transaction with a willing consumer is an expression of Berglund’s right of private contract, the right of association and right of privacy all are impaired by upholding the lower court’s order. The Order to halt sales of raw milk significantly impairs fundamental liberties and must be viewed through the lens of ‘strict scrutiny.’ The scope and reach of the constitutional right to ‘sell and peddle’ products of the farm is ripe for review.”
One of the key issues cited by the lower court was a precedent in a Supreme Court of Minnesota case— State of Minnesota versus Hartmann—that ruled that a framer’s unlicensed selling of products did not except the farm from state regulations.
Baer argues that the Hartmann case was never argued as a constitutional case, instead it was concluded based on state statutes. He hopes the Minnesota Supreme Court will accept his arguments against the Hartmann ruling, which would directly impact the Berglunds’ case.
If the Minnesota Supreme Court decides against hearing the case, the lower court’s ruling will stick, and the MDA will inspect the farm. The outcome of that inspection will be to order the Berglunds to either stop selling their products or to pasteurize their milk, both which would essentially end farm sales of raw milk products at Lake View Natural Dairy.
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